Ku-ring-gai Council v Safwen Hijazi

[2025] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ku-ring-gai Council v Safwen Hijazi [2025] NSWLEC 73

Hearing dates:

18 February 2025

Date of orders:

10 July 2025

Decision date:

10 July 2025

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [52]

Catchwords:

CONTEMPT — Civil contempt — Enforcement of local council and court orders — Failure to comply — Contempt proven — Contempt wilful — Fine imposed — Costs awarded

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Local Government Act 1993 (NSW), s 124

Uniform Civil Procedure Rules 2005 (NSW), r 40.7

Cases Cited:

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

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21

Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279

Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390

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

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265

Ku-ring-gai Council v Safwen Hijazi [2023] NSWLEC 102

McNair Anderson Associates Pty Ltd v Hinch & 3 AW Broadcasting Co Pty Ltd [1985] VR 309

Microsoft Corporation & Microsoft Pty Ltd v Marks(No 1) (1996) 69 FCR 117; (1996) 139 ALR 99

Mirus Australia Pty Ltd v Gage [2018] NSWSC 35

Re.Group Pty Ltd v Kazal (No 4) [2017] FCA 1084

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

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

Category:

Sentence

Parties:

Ku-ring-gai Council (Applicant)
Safwen Hijazi (First Respondent)
Bahjet Hijazi (Second Respondent)

Representation:

Counsel:
C Rose, solicitor (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Self-represented (First Respondent)
Self-represented (Second Respondent)

File Number(s):

2022/00101221

Publication restriction:

Nil

JUDGMENT

Introduction and outcome

1. By notice of motion filed 12 July 2024, Ku-ring-gai Council (‘Council’) seeks orders that Safwen Hijazi be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders made by this Court on 4 October 2023 and that he be punished by way of conviction, fine, or imprisonment.

2. The hearing of Council’s motion proceeded on 18 February 2025 and there was a short appearance on 20 February 2025 with Council being represented by its solicitor, Cecilia Rose. Mr Hijazi, despite being called, and as noted later in this judgment, being aware of the proceedings, did not participate in any part of the hearing which proceeded ex parte.

3. For the reasons that follow, I find beyond reasonable doubt that Mr Hijazi has committed wilful contempt of this Court and that this contempt is objectively serious. I consider it is appropriate to impose a fine in the sum of $20,000 and that Council be awarded its costs.

Evidence

4. Council read two affidavits of Joanna Assad, a Council officer, sworn 11 July 2024 and 30 June 2022; four affidavits of Michael Guest, a licensed commercial agent, sworn 23 May 2024, 29 January 2025, and 3 and 17 February 2025; an affidavit of Cecilia Rose, Council’s solicitor, affirmed 17 February 2025; and an affidavit of Paul James Newell, a chartered chemist, affirmed 21 December 2024. A recent email from Mr Hijazi to Council’s solicitor dated 17 February 2025 became Exhibit A. Exhibit “PN-01” to Mr Newell’s affidavit became Exhibit B.

Background

5. On 31 March 2021, Council served an order pursuant to s 124 of the Local Government Act 1993 (NSW) on Mr Hijazi (‘Remedial Order’). The Remedial Order was served on Mr Hijazi as the owner of premises at 22 Church Street, Pymble (‘premises’) and required him, inter alia, to engage a qualified and experienced occupational hygienist to undertake an assessment in accordance with s 3.4.3 of the “NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation” (‘Guidelines’), and thereafter undertake necessary remediation works in relation to the premises and provide Council with a Clearance Certificate confirming that the premises has been remediated and suitable for ongoing residential occupation.

6. The background to Council issuing the Remedial Order was that in 2019, NSW Police issued a “Clandestine Drug Laboratory Site Inspection Report” to Council advising that a clandestine drug laboratory was located at the premises and that NSW Police had attended the premises and removed hazardous chemicals and other contaminated materials, and advising Council of the likelihood of substances remaining within the premises that were potentially harmful to health and safety, namely, methamphetamine and acetone.

7. On 8 April 2022, Council commenced Class 4 proceedings against Mr Hijazi seeking declaratory and consequential relief in relation to Mr Hijazi’s non-compliance with the Remedial Order.

8. The hearing proceeded before Moore J on 29 September 2023. Mr Hijazi did not appear. As Moore J was satisfied that Mr Hijazi had been served with the relevant documentation and was aware of the hearing, the hearing on 29 September 2023 proceeded ex parte. On 4 October 2023, Moore J gave judgment granting Council relief in accordance with an amended summons filed 15 May 2023: Ku-ring-gai Council v Safwen Hijazi [2023] NSWLEC 102. The relief granted by Moore J (at [49]-[50]) was as follows:

“Declaration and orders

[…] [T]he Court makes the following declaration:

(1) The Court declares that Safwen Hijazi (the First Respondent) has not complied with the terms of the Remedial Order dated 31 March 2021 given by the Applicant to the First Respondent pursuant to s 124 of the Local Government Act 1993, requiring the First Respondent to engage a professional to undertake an assessment of contamination of Lot 2 DP 415318 - known as 22 Church Street, Pymble, NSW, 2073 (the Premises) resulting from the use of the Premises as an illegal drug laboratory and then undertake works necessary to remediate any contamination of the Premises; and

[…] The Court orders that:

(1)   The First Respondent is to comply with the Remedial Order, in particular by:

(a)   Engaging a suitably qualified and experienced professional, such as an occupational hygienist, to undertake a Preliminary Assessment or ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises; and

(b)   Based on the findings of the Report arising from Order 1(a) above, undertake the necessary remediation works and provide the Applicant with a copy of the Clearance Certificate/Report prepared by a suitably qualified and experienced professional, such as an occupational hygienist, confirming that the area (identified in the Police Report as the contaminated area), has been remediated and is suitable for ongoing residential occupation. Any Certificate/Report is to outline the results of the post clean validation sampling, including results for the quantitative analysis of surface samples, correlating to locations of suspected or confirmed contamination (area decontaminated) from a NATA accredited laboratory.

(2)   Orders 1(a) and 1(b) above must be completed within 90 days of the date of the service of a sealed copy of these orders on the First Respondent;

(3)   To the extent that the Amended Summons sought orders against Bahjet Hijazi (the Second Respondent), the Amended Summons is dismissed;

(4)   The First Respondent is to pay the Applicant's costs of the proceedings (other than those costs incurred by the Applicant in seeking the joinder of the Second Respondent and the costs of the preparation of, and service of the Amended Summons on, either the First or the Second Respondent) as agreed or assessed; and

(5)   The exhibits are returned.”

(‘Court Orders’).

9. Council marshalled evidence in relation to service of the Court Orders, the present notice of motion and the statement of charge on Mr Hijazi. I am satisfied that the Court Orders; the notice of motion (filed 12 July 2024); the statement of charge (filed 12 July 2024); and the evidence relied upon by Council have been served upon Mr Hijazi and he was aware that the motion was to proceed to hearing on 18 February 2025. My view is confirmed by Exhibit A, which is an email dated 17 February 2025, which was received by Council’s solicitor (and this Court) from Mr Hijazi (from an email address which I am satisfied has been Mr Hijazi’s consistent email address and that is the address which was earlier relied upon for provision of orders made on 25 October 2024 by Pritchard J for substituted service of Council’s evidence and material). The email states:

“Hi Cecilia,

I just received hard copies of these folders however as I have communicated to you before, I have done everything council has requested with limited funds. I have done this at the expense of paying rates at the moment and assumed everything has been completed. I don’t know what else I am suppose to do as I have also provided council with direct line of communication with the cleaning provider.

I am not sure what else the council needs

Regards

Saf”

10. The affidavit of Cecilia Rose affirmed 17 February 2025 sets out background details of the contact and attendances between Council’s solicitors and Mr Hijazi including emails since July 2024.

11. In that material there is an email dated 17 July 2024 sent from Mr Hijazi to Ms Rose, Council’s solicitor, and Joanna Assad, a Council officer, where he states that he had received “court papers again” and that he had earlier received (and now forwards to Ms Rose and Ms Assad) an email (and attachments) from “Gregory D Reid, Administration Manager, Enviro Force Pty Ltd” dated 29 September 2023 (which I note in passing is the date of the ex parte hearing before Moore J and five days before his Honour’s judgment), which states:

“Good afternoon Saf,

I am happy to let you know that the decontamination has brought the above property under the safe guidelines, this means that no further work is required, and the property is safe for living

I have attached the invoice, report, clearance letter, cover letter and results to this email.

If you have any further questions or concerns, please don’t hesitate to contact me.

Warm Regards,

Gregory D Reid

Administration Manager

Enviro Force Pty Ltd

Phone [phone]

Mob: [phone]”

12. The correspondence between the parties in and around September 2023 indicates that Mr Hijazi may have considered that certain material he had provided which he referred to in the email of 29 September 2023 as “the invoice, report, clearance letter, cover letter and results” (noted at [11] above), satisfied that which he understood was required by the Remedial Order in circumstances where it is clear that the material was provided (to Mr Hijazi but apparently not to Council) prior to the making of the Court Orders, the non-compliance of which has triggered the present notice of motion.

13. By email of 25 July 2024 to Mr Hijazi, Council’s solicitor informed Mr Hijazi that Council had reviewed the material (and the “Report”) that had been prepared by Enviro Force Pty Ltd and noted that there were “important deficiencies” including that the Report did not comply with aspects of the “NSW Health Guideline” and the “National Guideline” for a validation report. In particular, the Report did not provide any of the following: first, a sampling plan or figure; second, details of the qualifications of the person or persons undertaking the testing; third, a sampling methodology; fourth, a chain of custody; fifth, a sampling of location photographs; and sixth, “QA/QC” results from the laboratory. Council’s solicitor also noted that certain statements were “misleading” and that the Report did not meet the requirements of s 3.4.7 of the Guidelines or Order (2) of the Court Orders. Council’s solicitor suggested that Council’s expressed concerns be conveyed to Enviro Force Pty Ltd and that an updated report be requested, and noted that Mr Hijazi had not satisfied the Court Orders that had been served on him. The letter from Council’s solicitor included the following:

“In addition to the above, we note that the Report states that ‘Methamphetamine contamination levels below 0.5µg/100cm² are deemed safe by the Australian Governments Clandestine Drug Laboratory Remediation Guidelines’. This statement is misleading, if the results are below the 0.5 ug/100cm² investigation level, then no further action would be recommended under the guideline. However, this presumes that the pre­requisite steps in the assessment and validation have been appropriately complied with, and in any event in the absence of a chain of custody and QA/QC report the results would [be] unreliable and unlikely to withstand any legal challenge or scrutiny. In this case, the evidence that the correct process has been complied with is absent, so this statement is unsupported and as such unreliable.

The Report does not meet the requirements of section 3.4.7 of the NSW Health Clandestine Drug Laboratory Guideline or Order 2 in the Court Orders. We presume that you provided a copy of the Court Orders to Enviroforce so that they would be aware of the issues required to be addressed in the Report.

On the basis of the above, you have not satisfied the Orders served on you.

We suggest that you provide a copy of this email to Enviroforce and request an updated report that addresses the matters we have set out above. We note that the proceedings are to return to the Court on 23 August 2024. We request that an updated report be provided by 16 August 2024 so we can consider the report before the first directions hearing.

You are welcome to call me if you have any questions regarding the above. I also have no objection to Enviroforce contacting me if they have questions (assuming that is acceptable to you).”

14. On 26 July 2024, Mr Hijazi provided a further email to Council’s solicitors which stated: “I have gone thru [sic] my files and identified more reports that may help answer some of your questions … please feel free [to contact] the company directoly [sic] about their qualifications as they are accredited for this type of work … i have also forwarded this email to them”.

15. Council’s solicitor contacted Mr Hijazi by email on 6 August 2024 asking whether Mr Hijazi had received “any response from Enviroforce in relation to the matters raised in our email of 25 July 2024”, to which Mr Hijazi replied on 6 August 2024, stating:

“… I really dont know what else to do as I have had premises cleaned by the company and forwarded all evidence stating that it has been cleaned and meets the safety requirements as thats what they do as a company”.

16. In an email of 20 August 2024, Council’s solicitor contacted Mr Hijazi by email asking whether Mr Hijazi had “obtained any further material or received any response from Enviroforce”, to which Mr Hijazi replied on 21 August 2024, that he did not have any further “info”, and that he was “happy for … council to approach this company directly to qualify anything needed … considering the council and police initial reports 5 years ago had small traces, [I] cant believe we need to go thru all this but have done everything [I] can”.

17. In an email of 14 February 2025, Council’s solicitor informed Mr Hijazi that the present motion was listed for hearing on 18 February 2025 commencing at 10am and invited Mr Hijazi to attend court, stating, “The Court would like to hear any matters you would like to address. We will be asking the Court to impose a fine in respect of the contempt. If you have any matters that you wish to raise in respect of a fine such as your capacity to pay, you should come to Court so that you can address the Court on those matters.” It is clear that this email elicited the response from Mr Hijazi referred to (at [9]) above.

Council’s position

18. Council relied upon the expert evidence of Paul James Newell, a chartered chemist with experience in strategic and operational forensic and scientific investigations. Mr Newell holds specialist qualifications in clandestine drug laboratory investigation and safety from the NSW Police Force (Chemical Operations) State Crime Command. Mr Newell was provided with the material provided to Council by Mr Hijazi’s email of 17 July 2024 and thereafter.

19. Mr Newell deposes that he has reviewed the “Clandestine Drug Laboratory Site Inspection Report” dated 18 September 2019 prepared by, or on behalf of, the NSW Police Force, which records that in September 2019 police attended and removed over 2kg of methamphetamine, and an unspecified volume of acetone, and that police identified the chemical process being undertaken at the premises as the recrystallisation reaction being undertaken within the downstairs bathroom of the premises.

20. Mr Newell also reviewed various reports and correspondence provided by Mr Hijazi in his email of 17 July 2024 and thereafter, including a document titled “Laboratory Composite” dated 22 August 2023 prepared by Enviro Force Pty Ltd, a further document titled “Detailed Assessment” dated 24 August 2023 prepared by Enviro Force Pty Ltd, as well as a report titled “Hygiene Remediation Action Plan (HARP) Methamphetamine” dated 19 September 2023 prepared by Enviro Force Pty Ltd.

21. Although that material was not, and could not have been, prepared to address the Court Orders, as further considered later in this judgment, the evidence of Mr Newell is that there are deficiencies identified in the material otherwise sought to be relied upon by Mr Hijazi and provided to Council which require certification of testing, and analysis of results, which comply with the Guidelines (noted at [5] above), particularly in circumstances where, first, there have been no laboratory “QA/QC” data evaluation results; second, only one sample was collected from the 14 samples taken, while two samples should have been taken to comply with the relevant sampling methodology; third, inconsistencies were noted in the data regarding the sampling information recording how the samples were collected, tested and validated; and fourth, the validation report indicates that in the course of validation, samples were taken from the same location. Mr Newell opines that, in these circumstances, there is no certainty that any of the remediation works have been undertaken sufficiently to ensure that the premises do not have unlawful levels of methamphetamine hydrochloride present.

Consideration

Principles regarding the nature of contempt

22. This is a case of civil contempt and while there is a distinction between civil contempt and criminal contempt, the distinction is largely illusory. Simply stated, civil contempt involves disobedience of a court order in civil proceedings and 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, 538-539; [1995] HCA 3 (‘Witham’). The purpose of the law in civil contempt is to compel obedience rather than punish disobedience, which, by contrast, is the domain of criminal contempt: Re.Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 (‘Kazal’) at [73].

23. There is also a distinction between technical and non-technical contempt, and between wilful and contumacious contempt, which differentiates between conduct that does not justify any punitive sanction and conduct that 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.

24. Contempt of court can be constituted by a breach of an order of the Court, and each charge must be proved beyond reasonable doubt. Moreover, a person cannot be found guilty of contempt of court for a breach of an order where the terms of the order are ambiguous such that it cannot be said what it was that required compliance. Further, in construing the terms of an order, the Court should seek to give a sensible meaning consistent with its actual terms, as the meaning given must make it possible for an order to be capable of being obeyed. Whether an order is sufficiently clear and unambiguous is a question about which reasonable minds may differ: Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 at [50], [55].

22. The elements of contempt, where a charge of civil contempt is brought against an individual for breach of a court order, have been variously identified. In Kazal, Perram J (at [73]) stated:

“…

3.   In a case of civil contempt, the Plaintiff must prove that:

(i)   an order was made by a court;

(ii)   the order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with;

(iii)   the order was served on the alleged contemnor or that service was for some reason dispensed with under some lawful order;

(iv)   the alleged contemnor had knowledge of the terms of the order;

(v)   the alleged contemnor breached the order; and

(vi)   the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather that the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded.

4.   Whether the alleged contemnor intended to breach the order and to defy the Court is a matter going to penalty.”

26. Council, as the moving party seeking an order that Mr Hijazi be punished for contempt, bears the onus of establishing the contempt charged beyond reasonable doubt, regardless of whether the contempt is civil or criminal: Witham at 543, 545, 548. Council bears the onus of proving that the contempt is wilful or contumacious rather than technical, and contumacious rather than wilful. Further, Council bears the onus of proving other facts and circumstances that aggravate the seriousness of the contempt.

27. Given that Mr Hijazi has chosen not to attend the hearing of these proceedings or marshal any evidence, and while I consider that any prejudice he may suffer by the hearing being conducted in his absence is self-inflicted, I remain conscious that his position, and any available defence or response to the charge, as far as I can discern, is taken into account.

28. Despite having received the evidence relied upon by Council including the expert evidence of Mr Newell and despite Council having brought to Mr Hijazi’s attention specific concerns in relation to the earlier material which he otherwise sought to rely on as potentially constituting compliance with the (earlier) Remedial Order, it is clear that the Court Orders, similarly to the Remedial Order, required that a “Preliminary Assessment” or “Screening Assessment” in accordance with s 3.4.3 of the Guidelines and in line with the “Australian National Clandestine Drug Laboratory Remediation Guidelines” be prepared, and that Mr Hijazi undertake the necessary remediation and provide Council with a copy of the Clearance Certificate. These requirements have not all been satisfied.

29. It is clear from Council's evidence that a form of report (as well as the document styled “Clearance Certificate”) was prepared on behalf of Mr Hijazi before the Court Orders were made, although (as recorded above) those documents were not, in any event, made available to Council in any timely manner.

30. I accept Mr Newell’s evidence that there is no certainty that any of the remediation works have been undertaken sufficiently to ensure that the premises do not have unlawful levels of methamphetamine hydrochloride present and, it follows that Order 1(a) has not been complied with, and on that basis, there has been no certification as required by the terms of Order 1(b). I take this evidence, in the circumstances, to mean that there has been no compliance with the Remedial Order or the Court Orders.

31. The fact that Mr Hijazi may have had a belief that his conduct addressed the Remedial Order (or indeed the Court Orders) – a fact I do not find, in any event – is no defence to proceedings for contempt: McNair Anderson Associates Pty Ltd v Hinch & 3 AW Broadcasting Co Pty Ltd [1985] VR 309 at 314. Further, the fact that Mr Hijazi may have been unaware that his conduct breached the Court Orders is also not relevant: Microsoft Corporation & Microsoft Pty Ltd v Marks(No 1) (1996) 69 FCR 117 (‘Marks’) at 143; (1996) 139 ALR 99.

32. As noted above, I remain conscious that Mr Hijazi has chosen not to participate in the hearing of the present motion. As such, I am conscious that the service requirements of judgments and orders on a person bound by them are governed relevantly by r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) and, as I have recorded earlier, I am satisfied that the Court Orders and the notice of motion and the evidence relied upon by Council have been properly served on Mr Hijazi and that he is aware of the proceedings.

33. I have also taken into account that orders of a court are subject to the ordinary rules of construction: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503; [1965] HCA 21. In construing the Court Orders in these contempt proceedings, I am conscious of the remarks of Lindgren J in Marks at 143 as follows:

“The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead (except, perhaps, if the prosecutor proved that the contemnor understood them in accordance with what the court holds to be their true meaning) must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order or injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking: cf Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31.”

34. For the following reasons, I am satisfied beyond reasonable doubt that given a clear reading of the terms of the Court Orders and the evidence before me, Mr Hijazi has not complied with the Court Orders and is therefore in contempt of court. I have considered each of the factors noted below at [39] as well as the fact that it is unclear why Mr Hijazi has chosen not to appear at any stage of these proceedings (although I accept that there was some effort to provide the material that sought to address (at least) the Remedial Order).

35. In summary, I am satisfied beyond reasonable doubt, first, that the Court Orders were made by Moore J; second, that the Court Orders are sufficiently clear; third, that the Court Orders were served upon Mr Hijazi on 19 October 2023; fourth, that Mr Hijazi had knowledge of the terms of the Court Orders; and fifth, that Mr Hijazi has not complied with and has breached the Court Orders.

Principles of punishment for contempt

36. The Court’s power to punish a contemnor is inherent in its function as a superior court of record and, to the extent that there may previously have been some doubt, it is now clear that this power is not subject to criminal law sentencing statutes including the Crimes (Sentencing Procedure) Act 1999 (NSW): Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46]; Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 (‘Rollinson’) at [60].

37. Civil contempt involves disobedience of a court order in civil proceedings (Witham at 530) and the underlying rationale of sentencing for contempt is to protect the effective administration of justice by demonstrating that a court’s orders will be enforced: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [97]; Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [7].

38. Where the contempt arises from a breach of a court’s orders, an important purpose of punishment is to demonstrate that those orders will be restored and to reiterate that they must be obeyed. However, ensuring obedience is not the overriding objective of punishment because the proper objective is always the protection of the due administration of justice: Rollinson at [63], [65].

39. The primary factors relevant when considering the appropriate penalty for contempt (which I respectfully adopt) are noted by Payne JA in Rollinson at [66]-[67] referring to a list of factors identified by Barrett J in Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [27] (and which generally reflect the earlier analysis of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185). The factors, which are slightly overlapping, comprise:

1. the seriousness of the contempt proved;

2. the contemnor’s culpability;

3. the reason or motive for the contempt;

4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

5. whether there has been any expression of genuine contrition by the contemnor;

6. the character and antecedents of the contemnor;

7. the contemnor’s personal circumstances;

8. the need for deterrence of the contemnor and others of like mind and the need for denunciation of contemptuous conduct; and

9. the likely effect that punishment will have on the contemnor, including any hardship it might cause.

40. In relation to the seriousness of the contempt, although I find that Mr Hijazi had engaged with consultants in an attempt to address the Remedial Order, it is not clear what was provided to those consultants, however, it is clear that when the deficiencies in the material otherwise later provided by Mr Hijazi to Council were identified, no further steps were taken to seek further compliance, nor was there any indication that Mr Hijazi would seek to take any further steps to address the deficiencies. The contempt is objectively serious and I find that it is wilful. The evidence is, however, insufficient to prove beyond reasonable doubt that Mr Hijazi is knowingly defying the Court Orders and the authority of the Court (and hence that the contempt is contumacious).

41. In relation to Mr Hijazi’s culpability and any reason or motive for the contempt, the evidence is unclear.

42. In relation to whether Mr Hijazi has received or sought to receive a benefit or gain from the contempt, again I find that the evidence provides no assistance.

43. There is no evidence before the Court indicating that Mr Hijazi has expressed any contrition or apology and there is no evidence in relation to his character or antecedents which would assist the Court in circumstances where I find that no inference, either positive or negative, is able to be drawn in respect of his character and antecedents.

44. In relation to Mr Hijazi’s personal circumstances, again there is no, or very limited, evidence in relation to such circumstances.

45. In relation to general deterrence and specific deterrence and denunciation, I find that general deterrence is an important consideration in the imposition of a penalty for contempt, and I take into account a lesser need for personal deterrence in relation to what I find to be a reasonably long history between Mr Hijazi and Council in circumstances where Council’s concerns that the premises were free from contamination have been raised since February 2021.

46. I have also taken into account what appears to be Mr Hijazi’s likely limited financial means and the fact that there had been an attempt to comply with the Remedial Order.

47. In these circumstances, although I have a concern that Mr Hijazi has shown little contrition or remorse, and while there remains a failure to purge the contempt, I do not consider that the imposition of an ongoing monthly fine as suggested by Council to encourage adherence to the Court Orders (in addition to a primary penalty) would have the benefit that such a course would otherwise have. As such, and for the above reasons, I determine that the appropriate penalty is the imposition of a fine in the sum of $20,000.

Costs

48. Council seeks its costs on an indemnity basis. Although indemnity costs are commonly awarded in civil contempt cases (primarily as an important sanction to mark the Court’s condemnation of the breach of its orders), the question is always whether the particular facts or circumstances of a case warrant the making of an order for the payment of costs other than on a party and party basis.

49. While I am also conscious that contempt proceedings serve a public interest with the effect that a person who successfully brings proceedings should not be left out of pocket, there is no rule or principle that successful contempt proceedings necessarily attract indemnity costs orders as this would be inconsistent with the Court’s exercise of the curial costs discretion.

50. In the present circumstances, although I have taken into account the various factors in relation to the determination of any appropriate monetary penalty, as noted earlier, I do not consider that it is appropriate to award Council its costs on an indemnity basis.

51. I have taken into account my awarding of costs in my determination of Mr Hijazi’s overall punishment.

Orders

52. The orders of the Court are:

1. Safwen Hijazi is fined the sum of $20,000 for his contempt in failing to comply with the Court’s orders made on 4 October 2023.

2. Safwen Hijazi is to pay Ku-ring-gai Council’s costs of the notice of motion for contempt filed 12 July 2024.

3. Ku-ring-gai Council is directed to serve on Safwen Hijazi a sealed copy of the orders of the Court made on 10 July 2025.

**********

Decision last updated: 10 July 2025