Hawkesbury City Council v Harte (No 2)

[2025] NSWLEC 3

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hawkesbury City Council v Harte (No 2) [2025] NSWLEC 3

Hearing dates:

1 November 2024, written submissions 15, 29 November 2024

Date of orders:

13 February 2025

Decision date:

13 February 2025

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See below in [10]-[11].

Catchwords:

CONTEMPT OF COURT – no costs order made following sentencing for contempt of a contemnor

Cases Cited:

Blacktown City Council v Nitopi [2019] NSWLEC 40

Blacktown City Council v Pearce [2013] NSWLEC 175

Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132

Hawkesbury City Council v Laird [2024] NSWLEC 116

Palerang Council v Banfield (No 2) [2012] NSWLEC 158

Pittwater Council v Martoriati [2013] NSWLEC 84

Texts Cited:

GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths

Category:

Costs

Parties:

Hawkesbury City Council (Applicant)
Ashlee Marie Harte (Second Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)

Solicitors:
Pikes & Verekers (Applicant)

A M Harte (Self-represented) (Second Respondent)

File Number(s):

2020/00349413-005

Publication restriction:

No

JUDGMENT

1. Two respondents Mr Laird and Ms Harte were charged with contempt of court orders. They pleaded guilty. On 1 November 2024 Hawkesbury City Council v Laird [2024] NSWLEC 116 (Laird No 1) was delivered sentencing both Defendants. Mr Laird was fined and ordered to pay the Council’s costs on an indemnity basis. Laird No 1 held that Ms Harte’s breach was technical in that the Court did not consider it was deliberate or wilful in the same way that Mr Laird’s ongoing failure to comply was wilful because her reliance on Mr Laird appeared to be reasonable in the circumstances (at [92]).

2. In relation to whether a penalty should be imposed on Ms Harte I considered the nature of her contempt and that her personal circumstances were largely unknown at the time of delivery of the sentencing judgment (at [108]). I also identified that Ms Harte was potentially liable for the Council’s legal costs together with Mr Laird and these were likely to be substantial. In all these circumstances, no penalty was imposed on Ms Harte (at [109]).

3. The outstanding issue remains of whether an order for indemnity costs payable by Ms Harte in the Council’s favour ought to be made, as the Council seeks. On 1 November 2024 when Laird No 1 was delivered Ms Harte, who is now representing herself, was given the opportunity to provide evidence and make submissions about whether an order for costs payable by her ought to be made (at [112]). Ms Harte availed herself of that opportunity and the Council was provided with the opportunity to make written submissions in response.

4. On 15 November 2024 Ms Harte sent the Court a document titled ‘Affidavit for Financial Capacity of Ashlee Marie Harte’ signed and dated 9 November 2024 concerning her personal circumstances as a single parent with two school age children, former relationship with the other respondent Mr Laird, and her limited financial means and outstanding debts. The document was sworn before a justice of the peace. Ms Harte submits that her capacity to pay any costs is extremely limited due to her difficult financial and personal circumstances which are identified in her affidavit and asks that no order for costs in the Council’s favour be made.

Council’s submissions on costs

5. The Council sought an order that both respondents pay its costs on an indemnity basis. In the usual course, costs are ordered on an indemnity basis for contempt proceedings: Sutherland ShireCouncil v Perdikaris [2020] NSWLEC 111 at [76]; Pittwater Council v Martoriati [2013] NSWLEC 84 at [26], [27]; Blacktown City Council v Pearce [2013] NSWLEC 175 at [21], [22]; Blacktown City Council v Nitopi [2019] NSWLEC 40 at [219]-[223].

6. In Palerang Council v Banfield (No 2) [2012] NSWLEC 158 at [141] (Palerang Council) Pepper J observed that whether a party had the means to pay a costs order was not a relevant consideration as to whether a costs order should be made, including on an indemnity basis. In Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 (Gerondal) at [15] I came to the same conclusion. At [19] I cited the following extract from GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths (Dal Pont):

In EMI Records Ltd v Ian Wallace Ltd Megarry VC observed that special costs orders are needed in cases of contempt because 'nothing should be done to deter a person from bringing a contempt to notice of the court; and the risk of having to bear any of the costs will often be a real deterrent'. Contempt proceedings, it is reasoned, serve a public interest, such that a person who successfully brings these proceedings should not be left out of pocket. It has been judicially remarked, to this end, that it is a 'common or usual practice' to order that the contemnor pay costs on an indemnity basis, and the case law reveals multiple examples of indemnity costs awards in this context. But there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of the curial costs discretion.

7. A relevant consideration is whether, aside from the costs order, a penalty has been imposed for the contempt. If no other penalty is imposed, the court may be more inclined to employ 'a heavy order for costs as a means of imposing something in the nature of a sanction'. If, say, significant fines have been imposed, the 'penal' or 'deterrent' aspect of a special costs order may have less justification. Also relevant is the plaintiff's conduct and level of success.

8. Ms Harte was not fined, in part because of the prospect that she might face an adverse costs order. Her means to pay any costs order is irrelevant: Gerondal, Palerang Council. The Council should not be deterred from bringing proceedings to enforce the Court’s orders, which are yet to be complied with: Gerondal, Dal Pont. Consistent with the principles adopted in the above cases, the Council submits that Ms Harte should also be ordered to pay the Council’s costs of the proceedings on an indemnity basis.

Consideration

9. The making of a costs order including on an indemnity basis is ultimately an exercise of discretion by a judge of the Court. I accept that the authorities relied on by the Council reflect an approach that is generally applied in contempt proceedings, including by me in other cases. That is not a binding approach to be adopted regardless of circumstances as reflected in the paragraph from Dal Pont cited in Gerondal and set out above in [6] which was directed to the award of indemnity costs in contempt proceedings.

10. At the time Laird No 1 was delivered in 2024 the Court had no information about Ms Harte’s personal and financial circumstances as she was no longer represented by the same solicitor as Mr Laird the First Respondent and had not appeared at several mentions of the contempt proceedings over several months. I accept Ms Harte’s signed affidavit about her difficult personal circumstances including her financial position and take these circumstances into account in determining that no order that she is liable for the Council’s costs will be made on any basis. In doing so I am also mindful that I have already made an order for indemnity costs to be paid by the First Respondent Mr Laird in Laird No 1 so that the Council has a means of pursuing its costs.

11. In conclusion, no further order is necessary.

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Decision last updated: 14 February 2025