Liverpool Plains Shire Council v Rumble (No 2)
[2014] NSWLEC 13
•19 February 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13 Hearing dates: 19 February 2014 Decision date: 19 February 2014 Jurisdiction: Class 4 Before: Pain J Decision: See paragraph 21
Catchwords: CONTEMPT - failure to comply with court order in civil enforcement proceedings established beyond reasonable doubt Legislation Cited: Land and Environment Court Rules 2007 Pt 6 r 6.3(1)
Liverpool Plains Local Environmental Plan 2011
Supreme Court Rules 1970 Pt 55Cases Cited: Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104
Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118Category: Principal judgment Parties: Liverpool Plains Shire Council (Applicant)
Robert George Rumble (First Respondent)
Lee Rumble (Second Respondent)Representation: Mr M Fraser (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)
Moray & Agnew (Applicant)
File Number(s): 40202 of 2013
EX TEMPORE Judgment
Notice of Motion for Contempt
Background
The Respondents, Mr and Mrs Rumble, own and occupy a property in South St Quirindi NSW. The Respondents had for a number of years used the land and the adjacent road reserve for storage of motor vehicles inter alia. The property is zoned for residential use under the Liverpool Plains Local Environmental Plan 2011 (LEP 2011).
The Applicant Liverpool Plains Shire Council (the Council) commenced proceedings seeking orders to remedy and restrain the Respondents from using and occupying their land and the adjacent road reserve for unlawful purposes under the LEP 2011.
On 25 July 2013 the matter was heard by Biscoe J. There was no appearance for the Respondents. In an ex tempore judgment Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 his Honour:
(a) made relevant findings of fact as are recorded at [3];
(b) noted the environmental harm caused at [4],
(c) made relevant findings of fact as to the Council's efforts prior to these proceedings to obtain from the Respondents a cessation of the prohibited development and to correct the environmental harm at [5].
In consequence the orders made by the Court on 25 July 2013 were:
(1) The respondents are to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicles components) from:
(a) Lots 8 & 9 Section 30 DP 758863 known as 69 South Street Quirindi NSW ("the premises"), and
(b) the road reserve adjacent to and nearby the premises
(other than those roadworthy and registered in NSW in the names of residents of the premises and used for their personal purposes) by 5.00pm on 30 August 2013.
(2) The respondents are restrained from using the premises in any way that:
(a) falls within the definition of "commercial premises", "transport depots", "vehicle body repair workshops", "vehicle repair stations" and/or "waste or resource management facilities" as defined in the Liverpool Plains Local Environment Plan 2011, or
(b) is not in conformity with the zoning of the premises "R1 General Residential" pursuant to the provisions of the Liverpool Plains Local Environment Plan 2011,
as and from 5.00 pm on 30 August 2013.
...
Procedures for the commencement and prosecution of contempt proceedings are specified in Pt 55 of the Supreme Court Rules 1970 which are adopted in this Court by virtue of the Land and Environment Court Rules 2007 Pt 6 r 6.3(1). Part 55 of the Supreme Court Rules 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....
(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.
The Council filed a Notice of Motion dated 20 November 2013 seeking orders that the Respondents be punished for contempt of court in accordance with the Statement of Charge filed with the motion. At the hearing before me the Council pressed only par 1 of the Statement of Charge which states:
1. The respondents are guilty of contempt of court in that he/she failed to comply with Order (1) of the orders made by Biscoe J on 25 July 2013 in these proceedings.
Particulars
(a) The respondent failed to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicle components) from the premises specified in the order and the road reserve adjacent to a nearby the premises [sic] by 5 PM 30 August 2013.
(b) From about 30 August 2013 the respondents reintroduced onto the premises vehicles and has continued to introduce vehicles to the premises notwithstanding Order 1.
Service of orders
The Respondents were served with a sealed copy of the Court's orders on 15 August 2013. Particular details of the manner of service of the orders on 15 August 2013 and their re-service on 3 September 2013 are explained in the Council's affidavit evidence summarised below.
No appearance by the Respondents
The Respondents have not appeared at any stage of these proceedings either in person or represented by an agent or a legal practitioner including today, an unsatisfactory state of affairs given that today gives rise to a possible finding of contempt of court. The Council made an application for the matter to proceed ex parte on the question of whether it can establish that a prima facie case of contempt of court orders has occurred. The determination of the seriousness of the contempt and consequential punishment is to be left for a later date. That course was adopted by the Court on proof of service of notice of today's hearing date as detailed in three affidavits of Mr Hennessy, process server, read by the Council, two dated 26 November 2013 and one dated 19 December 2013.
While material had been filed with the Court by the Respondents this did not indicate whether they intended to appear or provide an explanation for why they would not be appearing. The Respondents' court book (exhibit E) included a medical certificate dated 16 October 2013. That is inadequate evidence to justify non-appearance on medical grounds as it is several months old and not indicative that the Second Respondent could not travel to attend court. No information about the First Respondent's situation was provided. The Court's expectation in the absence of any explanation is that the Respondents would appear today.
At the Court's request Mr Ryder, Council officer, rang the Second Respondent on a telephone number provided on a document in the Respondents' court book (exhibit E). Mr Ryder gave oral evidence of the conversation to the effect that the Second Respondent was aware the matter was in court today, she did not intend to appear and cited health problems she said the Court was aware of and that she wished the Court to move closer to her for a hearing. None of these matters were communicated to the Court's registry in advance and no application to move the proceedings has been made. This is an unsatisfactory state of affairs given these are contempt proceedings. The Respondents' behaviour is not consistent with an understanding of the seriousness of such a charge.
Proof of contempt of court orders established
The Council informed the Court that proof of contempt of court orders requires that any failure to comply with orders must be established beyond reasonable doubt. I considered in Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 whether a contempt of a civil enforcement matter required proof on the civil or criminal standard, which I discuss at [33]-[40]. I do not need to further consider this question as, for the reasons I give below, I consider the Council has established a failure to comply with order 1 made by Biscoe J beyond reasonable doubt.
Evidence tendered by the Council included a letter dated 17 February 2014 from Moray & Agnew Lawyers to the Respondents, outlining the possible penalties if the charges of contempt are proved, the Council's motivation in bringing the proceedings and giving the Respondents an opportunity to contact the Council or Moray & Agnew with a plan and timetable for removal of the vehicles and vehicle components (exhibit A). Also tendered was a letter dated 3 December 2013 from Moray & Agnew Lawyers to the Respondents enclosing orders made by the Registrar including the hearing date (exhibit B), an email from the Respondents sent to the Court dated 19 February 2014 with attachments (exhibit C), and photographs taken by Mr Ryder on 17 February 2014 of the property (exhibit D). The court book prepared by the Respondents was also tendered by the Council (exhibit E).
The affidavit of Mr Stephen Ryder, compliance officer at the Council, sworn on 18 December 2013 was read. It attached photographs taken by Mr Ryder at inspections of the property from 7 May 2013 to 20 October 2013, including aerial photographs taken on 12 December 2013. Mr Ryder states that there had appeared to have been an improvement in the number of vehicles and vehicle parts at the front of the property but there did not appear to have been any material change behind the fence line (affidavit par 19).
In oral evidence Mr Ryder stated that he had inspected the property on 17 February 2014 and took photographs from outside the property that were tendered (exhibit D). Mr Ryder stated that comparing the photographs he took on 17 February 2014 with the aerial photographs taken by him on 12 December 2013 showed there had been little change, if any, to the number of vehicles and vehicle parts inside the fence of the property. There were more vehicles outside the fence more recently.
The affidavit of Mr Mark Brothers, partner at Moray & Agnew Lawyers, sworn on 20 November 2013 was read. It attached letters sent to the Respondents dated 30 July 2013 containing the orders made by Biscoe J and an affidavit of the First Respondent affirmed 9 September 2013 filed in support of a Notice of Motion for an extension of time which states that the Council agreed for storage of parts and vehicles at South Street for the use of their business in Henry Street. The affidavit of Mr Brothers sworn on 17 February 2014 was also read which corrected errors in the affidavit dated 20 November 2013.
Affidavits sworn by Mr Nathan Hennessey, commercial agent, on 19 August 2013, were read attesting to personal service of letters addressed to the Respondents from Moray & Agnew Lawyers dated 15 August 2013 and the order made by Biscoe J on 6 August 2013. Affidavits sworn by Mr Hennessey on 3 September 2013, were read attesting to personal service of the Respondents of an order filed in these proceedings on 6 August 2013. An affidavit sworn by Mr Hennessey on 11 February 2014 was read which attached the orders that were referred to as served in the affidavits dated 19 August 2013 and 3 September 2013. Annexure A to the affidavit dated 11 February 2014 is a copy of the orders made by Biscoe J sealed by the Court with the penal notice which is not sealed by the Court. Annexure B is a copy of the orders made by Biscoe J sealed by the Court with the penal notice which is sealed by the Court.
The Council has complied with the necessary procedural steps required in Pt 55 in pursuing a charge of contempt such as service of the original orders and the Notice of Motion and Statement of Charge. It has established beyond reasonable doubt that there has been a failure to comply with order 1 made by Biscoe J which failure is ongoing in light of Mr Ryder's evidence.
A bundle of documents was filed by the Respondents called court book for 19 February 2014 (exhibit E), which contained their replies, a document called statement of objection to charge, a medical certificate dated 16 October 2013 advising of medical treatment for the Second Respondent, District Court judgments in trespass proceedings against the Council in 2009 which have no part to play in this matter, and two separate copies of the sealed orders of the Court. The principal matter to note from this material is an admission by the Respondents in the objection to the statement of charge at paragraph 9 that the reason for storing vehicles at the South Street property is because of limited storage space at their business premises in Henry Street Quirindi. This further supports the Council's evidence in this matter.
Also received by email from the Respondents dated 19 February 2014 was a document addressed to Pepper J (exhibit C) which purported to argue that these proceedings lack a constitutional foundation. Those issues were considered and dealt with by Biscoe J at [7]-[9] of his judgment. I agree with his reasons and there is no basis for revisiting this matter given that final orders were made and formally entered last year in any event.
Another document received by email on 19 February 2014 from the Respondents was headed Reply for 19 February 2014 (exhibit C) which overlaps in large part with the documents call Reply in exhibit E. This referred to irregularities with the orders issued by the Court with those served by the Council without any detail and I do not understand the nature of the complaint raised. Some of the contested history surrounding the Respondents' property is identified but is irrelevant to the matter before me today. The Respondents appear to suggest that they are not subject to any planning laws in that they assert the right to own chattels and live freely on their property. This issue was also considered by Biscoe J at [9] and determined in the Council's favour. I agree with his determination and in any event the orders he made are final having been made and formally entered by the Court. Issues otherwise considered by Biscoe J were also raised but once again have no bearing on whether his Honour's order 1 has been complied with.
The contempt of a court order has been proved which is not merely technical. I will not make any finding of whether the contempt was wilful or, more seriously, contumacious as I will provide one final opportunity for the Respondents to come before the Court to explain their actions including their attempts to purge their contempt. I strongly suggest that they take up such an opportunity. If they wish to make application to the Court about how a further hearing should be conducted this can be done by approaching the Court registry as soon as possible.
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Decision last updated: 20 February 2014
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