Inner West Council v Balmain Rentals Pty Ltd

[2022] NSWLEC 20

Land and Environment Court

New South Wales

Medium Neutral Citation:

Inner West Council v Balmain Rentals Pty Ltd and Anor [2022] NSWLEC 20

Hearing dates:

08 March 2022

Date of orders:

15 March 2022

Decision date:

15 March 2022

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [71]

Catchwords:

CONTEMPT – Civil contempt – Breach of orders – Guilty plea – Multiple counts – Continued use of premises for prohibited purpose of vehicle sales and hire premises – Wilful contempt – Sentencing factors – Commercial conduct – Consistency in sentencing – Fine imposed for each count – Costs as agreed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 22

Land and Environment Court Rules 2007 (NSW), r 6.3

Marrickville Local Environmental Plan 2011

Cases Cited:

Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362

Burwood Council v Ruan [2008] NSWLEC 167

Burwood Council v Wanless [2014] NSWLEC 20

Environment Protection Authority (EPA) v Barnes [2006] NSWCCA 246

Environment Protection Authority v Pannowitz(No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Hutley v Cosco [2016] NSWLEC 15

In the matter ofMycorp Pty Ltd [2014] NSWSC 1180

Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24

Matthews v Australian Securities and Investments Commission(ASIC) [2009] NSWCA 155

Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280; (2016) NSWLR 88

Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91

NCR Australia Pty Ltd v Credit Connection Pty Ltd [2004] NSWSC 1

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

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

Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210

Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14

Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35

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

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

Category:

Sentence

Parties:

Inner West Council (Plaintiff)
Balmain Rentals Pty Ltd (First Defendant)
Dewkelp Pty Limited (Second Defendant)

Representation:

Counsel:
C R Ireland (Plaintiff)
N Hanafi, solicitor (First and Second Defendants)

Solicitors:
Pikes and Verekers Lawyers (Plaintiff)
Lion Legal (First and Second Defendants)

File Number(s):

2018/00292668

Publication restriction:

Nil

Judgment

1. Balmain Rentals Pty Ltd (‘defendant’) has pleaded guilty to eight counts of contempt of Court for carrying out development for the prohibited purpose of a “vehicle sales or hire premises” between 14 June 2019 and 18 June 2021 contrary to orders of this Court made on 28 February 2019 in Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 (‘primary judgment’).

2. The sentence hearing proceeded on 8 March 2022. Mr C R Ireland, of counsel, appeared for Inner West Council (‘Council’) and Mr N Hanafi, solicitor, appeared for the defendant.

3. I find that the defendant has committed wilful contempt of the Court as charged, that this contempt is objectively serious, and I consider it appropriate to impose a fine in relation to each count. My reasons follow.

Background

4. The background facts are uncontentious. On 28 February 2019, the Court made the following orders:

“(1) Declare that each of the respondents being Balmain Rentals Pty Ltd and Dewkelp Pty Ltd by itself, its servants or agents has breached s 4.3(a) of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a "vehicle sales or hire premises" as defined by the Marrickville Local Environmental Plan 2011.

(2) Pursuant to s 9.46(1) of the Environmental Planning and Assessment Act 1979 (NSW) each respondent by itself, its servants or agents is restrained from carrying out the use of the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011.

(3)   The first and second respondents pay the costs of the Inner West Council of the proceedings as agreed in the sum of $15,000, such costs to be payable within 28 days of today.”

5. The Court granted declaratory relief and consequential injunctive relief against the defendant, in relation to the use of premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville (‘premises’) for the prohibited purpose of a “vehicle sales or hire premises” contrary to the Marrickville Local Environmental Plan 2011 (‘MLEP’).

6. At the time of the primary judgment, the premises at all relevant times were occupied by the defendant, which had its registered office and principal place of business registered at the premises. Raymond Charles Guthrie is the sole director and sole shareholder of both the defendant and Dewkelp Pty Limited, the second respondent in the Class 4 proceedings and the owner of the premises up until November 2020.

7. The premises are located in Marrickville in the local government area known as Inner West Council and have an area of approximately 4,590m² with a street frontage of 48m. The premises are zoned IN1 General Industrial and are surrounded to the north by a number of light industrial uses, to the south by a number of businesses including motor repair businesses. Use of the premises for “vehicle sales or hire premises” is prohibited in the IN1 General Industrial zone. Opposite the premises is a row of dwellings which runs from the intersection of Smith Street and Fitzroy Street to the intersection of Edinburgh Road and Fitzroy Street, Marrickville.

8. Without any development consent or approval, the defendant commenced operating a vehicle hire business at the premises trading under the name of “Balmain Rentals” (which is a registered business name of the defendant) on or about 8 May 2017. At the time of the primary judgment, the business offered a broad range of rental vehicles, comprising up to 60 vehicles available for hire from the premises including utes, long and short wheel-base vans, trucks of various sizes and functionality, and a variety of ute-style vehicles with cages thereon. The evidence then before the Court was that Council had received numerous complaints from resident objectors regarding the conduct of the business at the premises, and that a development application had earlier been lodged by Dewkelp Pty Limited. The development application, which had sought development consent for a “vehicle hire & vehicle sale plus self-storage facility within existing building and landscape & fencing”, was refused by Council on 28 August 2017 on the grounds that the proposed use was prohibited. At the time that the development application was being considered, the premises were being used for unauthorised activity being “hire of removal vehicles”.

9. The evidence before the Court at the hearing of the substantive Class 4 proceedings, which included extensive photographic material, indicated that vehicles which were made available by the business for hire from the premises were parked on the unbuilt area of the premises as well as on surrounding streets including Fitzroy Street, Smith Street and Edinburgh Road, Marrickville. There was also evidence that customers of the business would drive to the premises to hire vehicles and park their vehicles in surrounding streets including Fitzroy Street, Smith Street and Edinburgh Road, Marrickville. It was clear from Council’s records that the use of the premises for vehicle hire caused amenity impacts to surrounding properties by creating noise impacts through the collection and return of vehicles, reducing on-street parking by the parking of many “Balmain Rentals” trucks on the surrounding streets, and littering, as discarded rubbish from trucks being returned to the premises had been left on the street.

10. By notice of motion filed 9 July 2021, Council seeks an order that the defendant be found guilty of contempt for its failure to comply with Order (2) made by this Court in the primary judgment on 28 February 2019, that the defendant be punished for the contempt, and that the defendant pay Council’s costs on an indemnity basis, or in the alternative on an ordinary basis.

11. The statement of charge filed 9 July 2021 details eight counts of contempt relating to conduct spanning 14 June 2019 to 18 June 2021 each of which charges that the defendant carried out development on the premises for the prohibited purpose of a “vehicle sales or hire premises” (as prohibited by the MLEP) contrary to Order (2) made 28 February 2019. The statement of charge particularises conduct on eight separate occasions being, 14 June 2019, 16 June 2019, 6 April 2020, 14 April 2020, 16 April 2020, 20 July 2020, 9 November 2020 and 18 June 2021. On 4 February 2022, the defendant pleaded guilty to all eight counts of contempt for carrying out development for the prohibited purpose of a “vehicle sales or hire premises”.

12. The statement of agreed facts filed 17 February 2022 (‘SOAF’) provides that:

1. On 6 April 2020, a private investigator inspected the premises, spoke to two males about hiring a vehicle, provided his credit card and drivers licence, one male attended an office at the premises to process the rental, left with a Toyota Hilux ute, returned the vehicle to the premises after approximately one hour, was advised that he would receive an invoice by text message and refund of $300, and took photographs (Count 1);

2. On 14 April 2020, a private investigator inspected the premises, spoke to a male about hiring a ute, was advised that he did not have a booking, observed 35 vehicles in the yard of the premises, was advised the business had approximately 60 vehicles, provided his credit card and drivers licence, was directed to a ute parked on the street, returned the vehicle to the premises after approximately one hour, and took photographs (Count 2);

3. On 16 April 2020, a private investigator visited the website of “Balmain Rentals” and found bookings could be made by phone or email, requested a booking via email, later attended the premises, observed the same number of vehicles as during Counts 1 and 2, spoke to a male who confirmed his booking, provided his credit card and drivers licence, the male attended an office at the premises to process the rental, left with a Toyota Hilux, returned the vehicle to the premises after approximately one hour, was advised that a receipt would be sent by text message, and took photographs (Count 3);

4. On 20 July 2020, a private investigator attended the premises, observed 10 vehicles parked on the street, met with a male in relation to the hire of a ute, provided his credit card and drivers licence, the male walked to an office to process the rental, was taken to a Hilux ute parked on the street, returned the vehicle to the premises after approximately one hour, was advised that a receipt would be sent by SMS, and that part of the deposit would take 10 days to be reimbursed, and took photographs (Count 4);

5. On 9 November 2020, a private investigator attended the premises, noted the premises were crowded with vehicles and noted that no employees were visible, noted a sign at the entrance directing visitors to phone a mobile number on arrival, phoned that number from the gate of the premises and spoke with a male about hiring a vehicle, provided his drivers licence and credit card to process the rental, was advised by the male that there was a $300 deposit and that any unused portion would be refunded, left with a Toyota Hilux utility, later returned the vehicle to the premises, again noted that no employees were visible, phoned the same number, the male attended from the office, and took photographs (Count 5);

6. On 18 June 2021, a private investigator attended the premises, observed a male assisting another patron, enquired about hiring a ute, was directed to an office at the rear of the premises, provided his drivers licence and credit card, found one ute to be unregistered, was taken to a ute parked on the other side of Fitzroy Street, left in that ute, returned the vehicle to the premises approximately one hour later, was advised that a receipt would be sent via SMS, and took photographs (Count 6);

7. On 16 June 2019, Council officers observed a number of vehicles with “Balmain Rental’s” liveries parked on the surrounding streets as well as on the premises, and took photographs (Count 7); and

8. On 14 June 2019, the same Council officers as Count 7 similarly observed and photographed the premises (Count 8).

13. At all times up until November 2020, the defendant leased the premises from Dewkelp Pty Limited and from November 2020, when the premises were sold by Dewkelp Pty Limited, the defendant leased the premises from Shepherd Street Pty Ltd, with the intention of winding down the business. The defendant occupied the premises and operated the business (which involved hiring of a range of vehicles including utes, trucks and vans which are parked on the premises or on surrounding streets) up until 5 January 2022.

Evidence

14. The Court received an extensive SOAF comprising background details, some of which are summarised above, and extensive photographic material relating to each of the eight counts.

15. The Court also received a statement of Mr Guthrie dated 28 February 2022, the sole director and sole shareholder of the defendant. Mr Guthrie also gave oral evidence.

16. In his statement, Mr Guthrie indicated he commenced the defendant’s business in 1990 and that sometime after the primary judgment he consulted a town planner and sought advice as to how the premises “could be validly used as a storage facility”, noting that prior to the Court’s orders he had begun a form of booking arrangement that could be undertaken via telephone, email or through the defendant’s website in an attempt to “deter customers from coming in”. Despite knowing that a development consent would be required for any use that may have been permissible, no development consent was obtained. Mr Guthrie thereafter, at least from “mid-2020”, reminded his employees that “walk-ins were not to occur”. He stated he regretted not implementing better steps to ensure the employees did not do “on-site hires”. He stated that a receiver had been appointed to the defendant in 2018-2019, and that the defendant was operating at a loss for the last few years.

17. Mr Guthrie provided a letter from an accountant with a profit and loss statement headed “Profit and Loss [-] Balmain Rentals Pty Limited [-] Vehicle Hire Income & Expenses” (‘P&L Statement’) recording income and expenses relating to the defendant’s vehicle hire business. He stated that the defendant was being propped up by funds received from real estate sales and that as the defendant was not profitable, he invested in a “pub” in Bulahdelah. He further stated that the process of “winding down” the defendant’s business took some time as he felt loyalty to former employees who he stated would not have been able to readily find work elsewhere. He stated that the premises were sold to Shepherd Street Pty Ltd in November 2020 and that the defendant had “moved out of the premises” by 5 January 2022. He also stated:

“I apologise to the Court. Although I did not aim to undermine the authority of the Court, I conducted the business based on advice I was given, but I accept that in the absence of Council approval on the online hire and vehicle storage arrangement, the company had breached the Court’s Orders.”

18. Mr Guthrie stated that he is 71 years old, that he came from humble beginnings, and that the defendant’s business provided his only “stability” in life.

19. Mr Guthrie gave oral evidence, adopting his statement under oath and accepting that he was aware of both the matters in the primary judgment and the orders made in the primary judgment relevant at the time of each of the present charges.

20. In cross-examination, he accepted that despite his knowledge of the Court’s orders, the premises had continued to be used for vehicle and truck hire even though there was signage at the entrance to the premises to advise customers to call a telephone number when they had arrived at the premises and that these “pre-booking procedures”, even if implemented, still had the result that vehicles were kept on the premises for provision to customers, and that the hiring of vehicles did continue after the primary judgment. He admitted that he was aware that a further development application had been refused by Council and that the defendant had never received any relevant development consent. He was shown a copy of a lease dated 1 July 2019 (after the primary judgment) from Dewkelp Pty Limited (the owner of the premises and a company in which he was the sole director and sole shareholder) to the defendant, which provided (in its original form) for annual rent initially in the sum of $150,000 per annum for a term of one year with a later variation of the lease dated 1 November 2020, which increased the annual rent to $350,000 per annum. The use of the premises provided in the varied lease was for “car rental”.

Council’s position

21. Council submits that the defendant committed a non-technical contempt which continued over an extended period of time; there were multiple counts which merit punitive action; and, in those circumstances, the Court should impose an overall penalty sufficient to deter similar conduct by others and that a monetary penalty imposed for each specific count would give rise to a significant cumulative penalty, noting that the premises were not finally vacated by the defendant until 5 January 2022.

22. Council submits that the apology or expression of contrition proffered on behalf of the defendant is “qualified”, and that the business was conducted for financial gain.

23. Council notes that there have been amenity impacts on local residents and made submissions in relation to the ten factors considered to be relevant to sentencing for contempt identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 (‘Wood v Staunton’).

24. Council submits that the contempt is objectively serious involving serial breaches of a prohibition of a local environmental plan involving physical use of land that was publicly observable and spilled onto adjoining streets; and the Court would conclude that the defendant was aware of the consequences of it disobeying the order due to subsequent penalty notices and letters of warning sent by Council.

25. Council further submits that the consequences of the contempt, comprising active and longstanding presence constituting illegal use (including parking of vehicles on streets and associated activity), means that general deterrence represents an important part of the Court’s sentencing calculation in particular in relation to a breach of a planning law prohibition as the planning system depends on a high level of compliance applying to all land across NSW.

26. In relation to personal deterrence, Council submits that although the use has ceased, this remains a relevant factor, and further, that there is a significant role for denunciation for the contempt and the imposition of a penalty as otherwise the public may legitimately question the utility of injunctive relief and statutory enforcement in Class 4 proceedings.

27. Council submits that ss 21, 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) are relevant. Council particularly submits that the factors in ss 21A(2)(m),(n),(o) of the Sentencing Act are all relevant as aggravating factors as the use itself is unlawful; and the eight separate counts are part of a series of criminal acts and part of an “organised commercial activity” of a criminal nature because the ongoing breaches were carried out for financial gain.

21. In relation to even handedness, more than nominal penalties are imposed for departures from a planning regulation even if not involving environmental harm, and the present conduct can be distinguished from cases of (only) single counts of contempt, and, in these circumstances, a substantial total penalty is justified.

22. In summary, Council submits that the defendant has breached the Court’s order over a long period of time; the Court would find that the contempt is wilful because of the number of occasions on which the order was breached (even after the service of a Penalty Notice in April 2019); and that the disobedience is “more than casual, accidental or unintentional”, rather it was part of an “organised commercial activity or business” thus constituting wilful or intentional contempt.

23. Although Council sought its costs on an indemnity basis, Council noted that costs had been agreed (at the conclusion of the sentence hearing) in the sum of $55,000 on the basis that that amount be paid within 28 days of this judgment.

Defendant’s position

31. The defendant submits that Counts 1 – 6 involved actual hire on the premises and that Counts 7 – 8 do not involve actual hire as they were based on observations only. The defendant accepts that it did not obtain approval for using the premises as a “vehicle sales or hire premises” and submits that the contempt was not wilful; however, if that submission is not accepted, it submits that it was only wilful in the technical sense as the defendant genuinely believed that what it was doing was legally permissible.

32. The defendant submits that the contempt could not be characterised as contumacious as it did not have a deliberate intent to defy the Court’s authority because the activities were undertaken in an industrial zone, not a residential zone, and the fact that there were commercial vehicles parked on the street was a natural consequence of customers dropping off hire vehicles and that other businesses being in the industrial zone resulted in other commercial vehicles also being on the street. The defendant submits that Council has failed to point to any loss suffered by any party such that there were no environmental consequences and the reason for the contempt was that Mr Guthrie, being the sole director of the defendant, kept the business going for the benefit of longstanding customers, employees, and not for reasons related to his own financial gain.

33. Further, the defendant has not received any personal benefit, has offered an apology to the Court, has pleaded guilty to all eight counts, thereby indicating acceptance of responsibility for the prohibited use.

34. The defendant submits that in relation to character and antecedents, it is not known to the Court on any issues other than those the subject of the contempt; it has been an “icon” of the Inner West serving the community with affordable rentals and employing those who would not otherwise be in employment; and it has suffered “immense loss” while carrying out the business in contempt.

35. The defendant submits that personal deterrence is inappropriate where it no longer operates a hire car business; the requirement for general deterrence would be appropriately discharged through a finding of contempt and the imposition of a fine in circumstances where there has been no actual perceived risk to the environment, where this is not a case of wilful contempt involving environmental harm or risk, where the contempt has been purged by an apology, and the defendant took steps to implement the Court’s orders. In the circumstances, the defendant submits the Court would consider the pleas of guilty and the expression of contrition and remorse as mitigating factors pursuant to s 21 of the Sentencing Act. The Court would also note that the defendant has agreed to a not insignificant costs order in the sum of $55,000.

Consideration

Principles regarding the nature of contempt

36. This is a case of civil contempt. While there is a distinction between civil contempt and criminal contempt, the distinction is largely illusory because both require the charge to be proved beyond reasonable doubt and the usual outcome is punishment: Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35 at [23] (Biscoe J). Specifically, a civil contempt involves disobedience of a court order in civil proceedings. Comparatively, a criminal contempt involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525 at 530, 538.

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

38. Whilst both wilful and contumacious contempt involve intentional non-compliance with a court’s order, contumacious contempt is of larger gravity and renders criminal what would otherwise be civil contempt because it involves conscious defiance of a court’s order and its authority: Witham v Holloway at 538-539; see also Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [2], [24], [130], [141]; Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] (Biscoe J).

39. Council bears the onus of proving that the contempt is wilful or contumacious rather than technical; or contumacious rather than wilful; and the onus of proving other facts and circumstances that aggravate the seriousness of the contempt.

Principles of sentencing

40. In sentencing for contempt, the Court will take into account the same principles as are applicable in sentencing for an ordinary criminal offence: NCR Australia Pty Ltd v Credit Connection Pty Ltd [2004] NSWSC 1 at [24].

41. The principles which I consider appropriate relating to the nature and purpose of punishment for contempt were helpfully summarised in Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126, 131-132 at [20]-[24] as:

“[20] The underlying purpose of the exercise of the power of the court to punish for contempt is to protect the effective administration of justice by demonstrating that the court’s order will be enforced: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107. In Mudginberri (at 107) the High Court referred to Borrie and Lowe’s Law of Contempt (2nd ed, 1983), p 3:

‘If a court lacks the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.’

[21] The function of punishment for contempt serves two purposes: the enforcement of the process and order of the court and punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose punishment also serves the purpose of deterring both the contemnor and others who might be so minded from flouting the authority of the court.

[22] Non-compliance with an order or a judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must therefore show that obedience to a court’s order is important and should reflect its gravity.

[23] Finally on the question of the nature and purpose of a penalty for contempt it is worth noting the judgment of Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [149]:

‘Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law may result”. [Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115]. Obviously, the culpability of the contemnor is relevant to the order which must be made [Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741] The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.’

[24] In Court of Appeal, Registrar of v Maniam (No 2) (1992) 26 NSWLR 309, Kirby P, Hope AJA concurring, in an important passage said (at 314):

‘A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. …’”

42. Although there are no specifically identified matters that must be taken into account in sentencing for contempt, I have given regard to the following eight of the ten factors identified by Dunford J in Wood v Staunton at 185:

•   The seriousness of the contempt;

•   Whether the contemnor was aware of the consequences to himself or herself of what he or she did;

•   The reason for the contempt;

•   Whether the contemnor has received any benefit or gain from the contempt by indicating an intention to give evidence;

•   Whether there has been any apology or public expression of contrition;

•   The character and antecedents of the contemnor;

•   General and personal deterrence; and

•   Denunciation of the contempt.

43. These factors have been applied by this Court in a number of decisions, which I have considered in relation to consistency in sentencing including: Burwood Council v Ruan [2008] NSWLEC 167 (‘Ruan’) at [18] (Biscoe J); Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 (‘Brown Brothers’) at [92] (Pepper J); Burwood Council v Wanless [2014] NSWLEC 20 at [19] (Preston CJ of LEC); Hutley v Cosco [2016] NSWLEC 15 (‘Hutley’) at [32] (Pain J). These principles are also broadly consistent with those outlined by Tobias JA in Matthews v Australian Securities and Investments Commission (ASIC) [2009] NSWCA 155 at [129].

44. While there is fertile ground for debate as to whether the Sentencing Act applies to civil contempt proceedings (Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280; (2016) NSWLR 88 at [15] (Meagher JA)), it has been applied generally (In the matter of Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 (‘Queanbeyan’) at [17] (Biscoe J); Hutley at [32]). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.

45. The purposes for which a court may impose a sentence on an offender are listed in s 3A of the Sentencing Act and, in the present matter, include first, to ensure that the offender is adequately punished for the offence; second, to make the offender accountable for his or her actions; and third, to denounce the conduct of the offender.

46. There is clearly some overlap between the factors identified as relevant in Wood v Staunton and the relevant factors set out in s 21A of the Sentencing Act.

Appropriate penalty

47. Except where otherwise noted, my consideration and comments to follow relate equally to each count.

48. It is clear that the defendant’s conduct took place over a not insignificant period of time (being over two years). In these circumstances, having regard to the location of the defendant’s registered office, the service of the Penalty Notice, and the clear and unequivocal nature of the Court’s orders, I find that each count to which the defendant has pleaded guilty constituted intentional conduct and that the contempt is wilful as this is the inevitable inference from the number of occasions on which the order was breached.

49. It is clear, as submitted by Council, that the majority of counts took place prior to November 2020 when (as noted at [13] above) the defendant decided to vacate the premises. I accept this submission and find beyond reasonable doubt that there is no evidence of any intent to vacate the premises (in the sense of ceasing to use the premises contrary to the Court’s order) prior to November 2020 and although a wilful or intentional contempt does not need to be contumacious (nor contumelious), I find beyond reasonable doubt that the conduct is deliberate, and the disobedience is more than casual, accidental or unintentional.

50. Because I find the contempt is wilful, and therefore a species of civil contempt, little turns on whether it is contumacious. Although I was initially of the view that the conduct of the defendant was contumacious (in that the conduct involved knowledge of the Court’s order and the requirement to obey it and a decision to breach it in any event), on reflection, I do not consider that contumacious disobedience has been made out in the circumstances.

Seriousness of the contempt

51. The contempt is objectively serious and is wilful. The defendant (through its directing mind) was well aware of the facts and circumstances that led to the orders and the meaning and consequence of the orders since the orders were made on 28 February 2019.

52. I accept, and this Court has frequently found, that the planning system depends on adherence to the requirement to observe prohibitions in environmental planning instruments and adherence to the orders of this Court. The orders given on 28 February 2019 followed the defendant being issued with a Penalty Notice in April 2018 for undertaking development without development consent at the premises. Further, on 9 July 2020, Council’s solicitors wrote to the defendant’s solicitors in relation to the defendant’s continuing non-compliance with the Court’s order.

53. I find that each of the counts involves what can only be described as serial breaches of the Court’s order relating to a prohibition in the relevant planning instrument involving physical use of land that was publicly observable and, as submitted by Council, spilled over onto adjoining streets. I find the contempt was more than moderately serious.

Awareness of the consequences

54. In the circumstances, I find beyond reasonable doubt that the defendant was aware of what it was doing and the consequences thereof, and that its ongoing conduct was in contempt, both as a result of the participation of the directing mind of the defendant in the substantive Class 4 proceedings as well as the earlier service of the Penalty Notice in April 2018 and correspondence from Council’s solicitors of 9 July 2020 again detailing Council’s concerns regarding the continuing conduct on the premises in breach of the Court’s order.

55. In these circumstances, the defendant’s contact with the town planner (as noted at [16] above) did little more than confirm that the continued conduct on the premises without approval was unlawful. The defendant was aware of the consequences of its actions, and I do not accept the defendant’s submission to the contrary. I accept Council’s submission that, the sign with the telephone number at the premises’ entrance amounted to a “token gesture”; and, further, that the defendant was not inexperienced with planning regulation having been the subject of the primary judgment, having entered consent orders with Marrickville Council in relation to previous conduct in 2001, and having considered town planning advice which it did not implement.

Reasons for the contempt and benefit to the defendant

56. I find beyond reasonable doubt that the reason for the conduct comprising each of the counts was for commercial purposes in circumstances where the defendant operated its business at the premises for obvious commercial purposes; and a number of the counts involved the receipt of funds as part of its commercial operation in circumstances where no excuse has been proffered for any of the counts – except for a submission (which I do not find persuasive) that the continuation of the business was for the benefit of continuing the employment of the employees. Further, as shown in the P&L Statement which the defendant itself introduced into evidence, the income “solely” related to the defendant’s “vehicle hire business” was approximately $790,000 for FY2019; $467,000 for FY2020; and $336,000 for FY2021. Although it was contended that the business was operating at a loss, I do not place weight upon this in circumstances, as noted below, where the lease with Dewkelp Pty Limited recorded the rental to be $150,000 to $350,000 per annum and the P&L Statement shows that the primary operating expense of the defendant were the rental payments.

Contrition and apology

57. I accept that there has been a “qualified” apology and limited public expression of contrition in circumstances where, as submitted by Council, the apology was not without some reservation and was originally proffered one month before the hearing.

Character and antecedents of the contemnor

58. I accept that there have been no convictions recorded against the defendant and I take this into account. I do not accept the defendant’s submission that this matter is unique because the defendant “made no profit” and received no benefit from the conduct, for reasons I have noted above related to the size of the business activity and the fact that payment of significant rent to a related company contributed to the defendant’s losses.

59. Despite this, I take into account that the defendant’s operations are now completed and that the defendant undertook (after some years) conduct to put itself in a position where it would not be in breach, however, I also take into account the extended timeframe adopted, and the fact that, despite taking town planning advice, the defendant did not obtain any relevant approval to allow it to conduct its business without wilfully not complying with the Court’s order.

Deterrence

60. I find that general deterrence is an important part of any sentencing calculation and particularly where the Court’s orders were made in circumstances where the defendant actively participated in (and indeed agreed to) the entry of orders in the primary judgment; and where it was aware of the facts and matters with which Council was originally concerned. In relation to deterrence, both general and personal, I accept, and I note the comments of Kirby J in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149]:

“Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, ‘serious and lasting damage to the fabric of the law may result’ …”

61. This commentary is particularly apposite in relation to a breach of a court order relating to a prohibition in planning law, as the overall operation of the planning system depends on a high level of compliance. As I noted above, harm to the regulatory system is caused by a breach such as the present. In these circumstances, other similar businesses must be deterred from flouting both orders of a court and planning regulation in this way.

62. In relation to personal deterrence, I consider that, despite the circumstances of the defendant no longer being involved in the vehicle hire business the subject of the contempt, some minor level of personal deterrence is still required in circumstances where the various counts occurred over an extended period of time in circumstances where the directing mind of the defendant was well aware of the continuing unlawful activity, and I consider that the prospect of reoffending cannot be entirely disregarded.

Denunciation

63. I consider that, in the present circumstances, there is a significant role for denunciation of the contempt in the imposition of a penalty. I find the breaches undertaken here must be strongly denounced as the public may legitimately question the utility of injunctive relief and statutory enforcement in Class 4 proceedings, such that enforcement would be in name only if serial flouting over a number of years was otherwise not the subject of strong denunciation.

64. Overall, I find beyond reasonable doubt that the acts constituting each of the charges were carried out for commercial purposes and for financial gain; and the objective seriousness of the offence is increased by evidence of payments from customers to the business.

65. Furthermore, as noted above, the evidence of the lease (and subsequent variation) and of the defendant’s P&L Statement indicates that, notwithstanding that the defendant had been operating at a loss, the defendant was clearly engaged in the contempt for, as Council submits, commercial purposes. The business being conducted had, as noted above, trading income in the vicinity of approximately $336,000 to $790,000 per year and was operated at a loss primarily because the most significant operating expenses were the lease payments to its associated company which was the owner of the premises.

Mitigating factors

66. I take into consideration that Council’s notice of motion for contempt was filed on 9 July 2021 and the defendant entered pleas of guilty on 4 February 2022. Although a plea of guilty, particularly one entered early, entitles a defendant to some discount on the penalty, I do not consider a discount of any significance to be appropriate in this circumstance as the matter was before the Court on at least one occasion. Despite this, I note that the defendant participated in the preparation of the SOAF and that the conduct at the premises had ceased by early January 2022. I also take into account the personal circumstances and background of Mr Guthrie and, subject to my findings above, the financial circumstances of the defendant.

Consistency in sentencing

67. A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question. Care must be taken because each case is different. For the purpose of considering comparative sentences, I have had regard to a number of cases in this Court. In each of Ruan, Brown Brothers, and Palerang Council v Banfield (No 2) [2012] NSWLEC 158, the Court collected a number of cases concerning contempt by reason of disobedience of court orders which I have closely considered.

68. In Queanbeyan at [38]-[41], Biscoe J noted that the range of penalties imposed by this Court in cases of wilful contempt have generally been in the range of $7,500 to $50,000, with higher penalties (which were defined as being over $20,000) being imposed in cases involving environmental harm or the risk of environmental harm.

69. Overall, taking into account the circumstances of each count, I consider it appropriate to impose a fine in relation to each count. Although each count varied slightly, they were all part of an overall unlawful activity undertaken in breach of an order of the Court which obviously involved eight discrete actions and I therefore regard the appropriate penalty is the imposition of a fine in the sum of $7,500 in relation to each count. In forming my decision, I have given consideration to the principle of totality which requires the Court when imposing a series of fines, each properly calculated, to consider whether the aggregate amount is just and appropriate and reflects the total criminality before the Court. I find that in the circumstance a total penalty in the sum of $60,000 is justified without a discount.

Costs

70. As noted above, Council sought its costs on an indemnity basis, however at the conclusion of the sentence hearing, the parties agreed in relation to costs in the sum of $55,000. As an order for legal costs is part of the overall punishment (Environment Protection Authority (EPA) v Barnes [2006] NSWCCA 246; Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84), I have taken the agreement as to costs into account in assessing both the individual counts and the aggregate penalty.

Orders

71. The Orders of the Court are as follows:

1. Balmain Rentals Pty Ltd is guilty of contempt of Court in that it did:

1. On 6 April 2020, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

2. On 14 April 2020, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

3. On 16 April 2020, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

4. On 20 July 2020, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

5. On 9 November 2020, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

6. On 18 June 2021, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011;

7. On 16 June 2019, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011; and

8. On 14 June 2019, contrary to Order (2) of this Court made on 28 February 2019, carry out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street, Marrickville for the prohibited purpose of a “vehicle sales or hire premises” as defined by the Marrickville Local Environmental Plan 2011.

2. Balmain Rentals Pty Ltd is fined $7,500 in each count (being a total of $60,000).

3. Balmain Rentals Pty Ltd is to pay Inner West Council’s costs of the contempt proceedings agreed in the sum of $55,000 within 28 days of the date of this judgment.

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Decision last updated: 16 March 2022