Malass v Strathfield Municipal Council

[2022] NSWLEC 131

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Malass v Strathfield Municipal Council [2022] NSWLEC 131

Hearing dates:

12 October 2022

Date of orders:

02 November 2022

Decision date:

02 November 2022

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [90]

Catchwords:

CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Carrying out development work contrary to Court order — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, ss 8.18, 9.34

Land and Environment Court Rules 2007 (NSW), r 3.7

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

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Burwood Council v Ruan [2008] NSWLEC 167

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

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

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

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

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

Malass v Strathfield Municipal Council [2020] NSWLEC 168

Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Mirius Australia Pty Ltd v Gage [2018] NSWSC 35

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

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

Strathfield Municipal Council v Malass [2021] NSWLEC 112

Strathfield Municipal Council v Malass [2022] NSWLEC 132

Sutherland Shire Council v Perdikaris [2020] NSWLEC 111

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:

Sarah Malass (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
R Lancaster SC with T C Spohr (Applicant)
G Farland (Respondent)

Solicitors:
Abbas & Co Lawyers (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s):

2020/00291053

Publication restriction:

Nil

Judgment

1. By notice of motion filed 16 December 2021 in these Class 1 appeal proceedings (commenced on 9 October 2020), Strathfield Municipal Council (‘Council’) seeks orders that Sarah Malass be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders of the Court made by Preston CJ of LEC on 27 November 2020, and that she be punished by way of conviction and fine.

2. Sarah Malass pleaded guilty to the charge on 1 August 2022, and a hearing on penalty proceeded on 12 October 2022. The hearing proceeded concurrently with another hearing on penalty in relation to separate charges of contempt of this Court in relation to two orders of the Court made by Pain J in separate (but not unrelated) Class 4 civil enforcement proceedings (‘Class 4 contempt proceedings’) to which Sarah Malass also pleaded guilty: Strathfield Municipal Council v Malass [2022] NSWLEC 132. As will be seen, there is a degree of common factual background to each of the contempt proceedings and these reasons.

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

Background

4. Sarah Malass is the registered proprietor of land known as 27 Boden Avenue, Strathfield, and identified as Lot 62 in DP 15955 (‘Property’).

5. On 22 November 2017, Council granted development consent for the demolition of existing structures and construction of a new two-storey dwelling with basement car parking, and an in-ground swimming pool at the Property (‘Consent’). A week later, Sarah Malass purchased the Property.

6. In early 2019, construction commenced on the Property purportedly in compliance with a construction certificate issued on 30 July 2018 (‘Construction Certificate’) by a private certifier (who was also appointed as the principal certifying authority).

7. On 14 September 2020, following complaints by neighbours as well as action by the principal certifying authority (including the issuance of a notice of non-compliance with approved plans), a Council officer inspected the Property and observed non-compliant development on various levels of the dwelling which was then under construction.

8. On 14 September 2020, Council issued a Development Control Order (‘DCO’) (otherwise known as a stop work order) pursuant to s 9.34(1)(a) and Item 2 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) to Sarah Malass, requiring the immediate cessation of all development work on the Property.

9. The DCO noted the following “Reasons”:

“1.   Council received concerns from neighbours alleging potential unauthorised work on the premises at 27 Boden Avenue, Strathfield.

2.   Onsite inspection conducted by Council’s Officer on 14/09/2020 revealed extensive amount of unauthorised development conducted on site. Amongst others, below are known non-compliant works during inspection:

-   Non-compliant underground basement; extensive additional unauthorised basement floor has been constructed;

-   Non-compliant ground level layout; extensive unauthorised development work compared to approved plans;

-   Non-compliant first floor level layout; extensive unauthorised development work compared to approved plans;

3.   A search of Council records confirmed development constructed on the site differs significantly from what has been approved under DA2017/091.”

The Class 1 appeal proceedings

10. On 9 October 2020, Sarah Malass commenced Class 1 appeal proceedings against the DCO under s 8.18(1) of the EPA Act (‘DCO appeal proceedings’) and on 29 October 2020, Sarah Malass applied by notice of motion for the DCO to be stayed until disposal of the DCO appeal proceedings. That motion proceeded to hearing before Preston J and, on 27 November 2020, the Chief Judge of this Court made the following orders (in Malass v Strathfield Municipal Council [2020] NSWLEC 168):

“The Court orders:

(1) The operation of the order given by Respondent to the Applicant on 14 September 2020 under s 9.34 and schedule 5 of the Environmental Planning and Assessment Act 1979 is partially stayed, such that the following work may be carried out on or before 30 January 2021:

(a)   Installation of a front door.

(b)   Completion of the flashings on the skylights to achieve waterproofing.

(c)   Installation of glass in the window and sliding door frames (being the frames that are already in situ) and seal the glass and frames to achieve waterproofing.

(d)   Installation of a temporary hoarding to make the entrance to the car parking garage secure.

(e)   Work equipment may be removed from the site.

(2)   The partial stay in order 1 is granted subject to the following conditions:

(a)   [Sarah Malass] is, on or before 14 December 2020, to make:

(i)   the development application; and

(ii)   building information certificate application described in the letter from Mills Oakley to Planning Lab, dated 20 October 2020 (tab 16, folios 111-113, Exhibit ‘RM-1’ to the Affidavit of Rabi Malass 29 October 2020).

(b)   [Sarah Malass] is to actively pursue those applications.

(c)   Upon the Council refusing or being deemed to have refused both applications, [Sarah Malass] must take prompt steps to:

(i)   appeal each of them to this Court; and

(ii)   file and serve a notice of motion for the consolidation of those appeal proceedings with these proceedings.

(d)   No other works may be carried out.

(e)   All work must be carried out in accordance with any conditions of development consent of DA2017/091 that directly prescribe the manner in which work must be carried out.”

(‘November Orders’)

11. In summary, the November Orders partially stayed the operation of the DCO “to avoid future damage to the building” on the condition that “no other works be carried out”, and that Sarah Malass actively pursue development consent and building information certificate applications amongst other things. The partial stay only allowed for installation of a front door; completion of skylight flashings to achieve waterproofing; installation of glass and seals in window and sliding door frames already in situ to achieve waterproofing; installation of a temporary hoarding to secure the entrance to the car parking garage; and the removal of work equipment from the Property; and provided that no other works were to be carried out. The reasons for the partial stay are clear from [52] (in Malass v Strathfield Municipal Council [2020] NSWLEC 168) which provided:

“I consider that works to physically secure and waterproof the building should be allowed to be carried out in order to avoid future damage to the building by trespassers or weather. The works proposed are of limited scope. Allowing such limited works does not undermine the purpose or utility of the stop work order. The stop work order continues to apply to prevent all other building work being carried out.”

12. These contempt proceedings relate to non-compliance with the November Orders.

The DCOappeal proceedings, separate building information certificate, and the DA proceedings

13. On 11 December 2020, Sarah Malass lodged Building Information Certificate Application No 2020/022 with Council, seeking to regularise “unauthorised works intending to be retained” (‘BIC application’).

14. On 13 January 2021, Sarah Malass lodged Development Application No 2020/239/1 (‘DA’) with Council seeking development consent for the use of the building which by then had been substantially erected on the Property for the purposes of a dwelling house as well as for alterations and additions.

15. Council refused the DA on 5 March 2021 and refused the BIC application on 9 March 2021.

16. On 11 March 2021, Sarah Malass commenced two (further) Class 1 appeal proceedings appealing against each of Council’s refusal of the DA (LEC proceedings 2021/00069569) (‘DA proceedings’), and Council’s refusal of the BIC application (LEC proceedings 2021/00069575) (‘BIC proceedings’).

17. On 12 May 2022, Senior Commissioner Dixon, after a four-day hearing, dismissed each of the three Class 1 appeals (the DCO appeal proceedings, the BIC proceedings, and the DA proceedings): Malass v Strathfield Municipal Council [2022] NSWLEC 1160.

Council inspections subsequent to the orders made on 27 November 2020

18. On 1 February 2021, Council officers conducted an external inspection of the Property and, although they were denied access to the dwelling, observed works, including the installation of vertical timber slats on the front façade, which had not been undertaken on 16 December 2020 (when an earlier inspection had been conducted).

19. On 4 February 2021, 18 March 2021, 27 March 2021, 30 March 2021, 15 June 2021 and 26 June 2021, various Council officers conducted further inspections of the Property and observed further building and construction activity being undertaken, including a truck pumping water; a tiling van; the unloading of building materials; an excavator; and other works including that internal ceiling panels had been installed.

20. On 15 July 2021, Council officers, acting pursuant to orders for access made by Pepper J on 12 July 2021 in the DCO appeal proceedings, conducted a further inspection of the Property and observed that development work continued to be undertaken in contravention of the Court’s November Orders.

The Class 4 proceedings

21. On 2 August 2021, Council commenced Class 4 proceedings seeking, amongst other things, a declaration that Sarah Malass had carried out works not in accordance with the Consent (and the Construction Certificate) and an order restraining Sarah Malass from using or carrying out works at the Property except in accordance with the Consent and the Construction Certificate. On 11 August 2021 and 19 October 2021, Pain J made separate orders (noted at [22] and [24] below), the contraventions of which are the subject of the Class 4 contempt proceedings: Strathfield Municipal Council v Malass [2022] NSWLEC 132.

22. On 11 August 2021, Pain J made interlocutory orders in the Class 4 proceedings granting injunctive relief, requiring that all works cease at the Property until the finalisation of the Class 4 proceedings.

23. On 19 September 2021, 24 September 2021, 29 September 2021 and 11 October 2021, Council officers conducted further inspections of the Property and observed building works being undertaken and the utilisation of building materials.

24. On 19 October 2021, Pain J made orders pursuant to r 23.8(1) of the UCPR, granting Council officers access to the Property on 22 October 2021 to conduct an inspection of all areas of the Property and take videos and photographs for the purpose of identifying the Property’s current state given that Council’s evidence suggested that work was being undertaken at the Property in breach of the August and the DCO: Strathfield Municipal Council v Malass [2021] NSWLEC 112 at [27]-[28] (Pain J).

Council inspections

25. On 22 October 2021, Bradley Ian Pope, a Council officer, and Brett Daintry, Council’s external town planner, conducted an inspection of the Property and observed that a range of additional works had been undertaken since his earlier internal inspection on 15 July 2021; and on 8 November 2021, the hearing of the three Class 1 appeal proceedings (referred to at [10], [16] and [17] above) commenced (before Senior Commissioner Dixon) with an onsite inspection, at which Council officers observed that additional development work had been undertaken at the Property.

26. Council officers conducted further inspections on 10 November 2021 and 14 November 2021, and observed workers carrying out works, and emptying material into a skip bin in the front yard of the Property.

The contempt proceedings

27. On 16 December 2021, Council filed the notice of motion presently before me seeking orders that Sarah Malass be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders of the Court made by Preston J on 27 November 2020. On 28 July 2022, Council filed an amended statement of charge providing particulars of the charge. The amended statement of charge provided:

“1.   Sarah Malass is guilty of contempt of this Court for disobeying or otherwise failing to comply with orders 1 and 2(d) of the Court’s orders made 27 November 2020 in these proceedings, being annexure “A” (Class 1 Orders).”

28. The amended statement of charge included as Annexure “B” the following “Table of work carried out” in contempt of the November Orders:

“Date Observed

Work carried out

26 JUN 2021

• blue metal and soil being pumped into rear of Property from truck with line pump parked on street

15 JUL 2021

• plasterboard panelling had been installed in the basement, elevator and mudroom walls and ceiling;

• electrical cables running along the wall frame from the laundry to the pump room;

• a door had been erected between the laundry and pump room;

• plasterboard panelling had been installed in the storage room, and several electrical cables;

• a pump out pit with concrete walls and pipes, located through a manhole in the storage room;

• plasterboard panelling had been installed in the laundry walls and ceiling; electrical wiring and piping in the laundry;

• plasterboard panelling has been installed in the hallway walls of the basement;

• electrical cables hanging from the ceiling in the cinema room;

• plasterboard panelling had been installed in the hallway walls and ceiling from the cinema room to the lounge room in gym;

• plasterboard panelling had been installed in the lounge room and gym walls and ceiling;

• outdoor stairs leading to the rear yard that appeared to have been freshly painted;

• plasterboard panelling had been installed in the basement bathroom and steam room walls;

• pipes and automatic monitoring systems had been installed in the pool and spa equipment room;

• a doorframe to the study had bene[sic] installed, the walls of the study were lined and painted white, and electrical wires hanging from the walls;

• plasterboard panelling had been installed in the ground floor main area walls and ceiling and painted white;

• walls and ceiling of the elevator foyer on ground 1 had been painted white;

• glass doors had been installed between the rumpus room and outdoor living area;

• underfloor heating had been installed to the outdoor deck area;

• windows had been installed in the swimming pool looking area;

• a painter was applying white paint to the exterior wall near the staircase leading to the basement;

• the butler’s pantry walls and ceiling were lined and painted white;

• black marble tiles had been installed in the bathroom adjacent the elevator on the ground floor;

• plasterboard panels had been installed and painted white to the walls and ceilings of the first floor foyer, electrical cables were hanging from the walls;

• plasterboard walls had been installed and painted white in bedroom 4 walls and ceiling, built in wardrobe had been partially constructed, ensuite walls had been tiled using marble, and a mirror was installed with shelves adjacent the mirror;

• plasterboard walls had been installed and painted white in bedroom 5 walls and ceiling, built in wardrobe had been partially constructed;

• plasterboard walls had been installed and painted white in bedroom 3 walls and ceiling, built in wardrobe had been partially constructed;

• electrical switchboard had been installed adjacent to the electrical cupboard leading to ensuite 2;

• ensuite 2 walls had been tiled using marble, and a mirror was installed with shelves on either side;

• plasterboard walls had been installed and painted white in bedroom 3 walls and ceiling, built in wardrobe had been partially constructed;

• a worker was sanding the walls in bedroom 2;

• plasterboard walls had been installed and painted white in the master bedroom walls and ceiling, built in wardrobe had been partially constructed, ensuite walls had been tiled using marble, and a mirror was installed;

• two workers were painting the walls in the master bedroom;

• the roof was painted grey, and a bank of solar cells, various exhaust vents and 3 Fujitsu air conditioners had been installed;

• a stone feature wall had been installed to the southern end of the driveway;

• stairs and concrete in the front yard had been painted grey.

19 SEP 2021

• skip bin in front yard filled to rim with building materials

24 SEP 2021

• worker wearing orange high visibility singlet holding two buckets of construction materials walk out the front door and then back in

11 OCT 2021

• worker exit the Property with extension cord in his hand

22 OCT 2021

• the north-eastern portion of the boundary fence had been constructed;

• temporary protective material removed from the laundry and timber plywood installed in doorway leading from the laundry room to the pump room;

• installation of test cladding to the wall to the left of the stairway leading from the basement to the ground floor;

• doorframe installed leading to the storeroom;

• installation of workers bench and parquetry in cinema room;

• parquetry and door frames assembled in the middle of the lounge room and gym;

• additional plumbing works in the bathroom in basement and temporary protective material removed from the floor;

• bathtub placed in the steam room in basement;

• ground floor ceiling had been lined and no longer had cabling hanging down;

• cabinets and shelving had been assembled and stored on the ground floor;

• floor to ceiling cupboard installed on the ground floor;

• marble installed to fire place on ground floor;

• outdoor living and dining area and rear yard deck had been concreted and rendered;

• retractable ceiling installed over staircase leading from basement to ground floor;

• swimming pool and spa in rear yard had been rendered, and pipes penetrating from spa had been cut back flush to render;

• installation of cupboards, plumbing and electrical work in butlers pantry;

• installation of new garage door;

• installation of stone feature wall against existing wall in front yard, and construction of new driveway all with attachment of stone façade; and

• installation of new fence adjoining property to south replacing the Colourbond fence.

8 NOV 2021

• finished timber floors across both ground and first floor level;

• kitchen cabinetry including built in pantry;

• internal fire place in the living area;

• retractable roof on ground floor;

• enclosure leading down to the basement level;

• wardrobes within individual bedrooms on first floor level; and

• bathroom ensuite tiles within bedrooms.

10 NOV 2021

• three workers outside the Property who advised they were attending to carry out electrical works

14 NOV 2021

• worker emptying a bucket into the skip bin in the front yard of the Property

17 FEB 2022

• worker cutting up materials with a power tool in rear yard of Property”

29. On 1 August 2022, Sarah Malass entered a plea of guilty to the charge.

Council inspections subsequent to the commencement of the contempt proceedings

30. On 12 January 2022, 3 February 2022, 7 February 2022, 8 February 2022, 17 February 2022, 1 March 2022, 6 May 2022, 9 May 2022, 10 May 2022 and 2 June 2022, Council officers conducted further inspections of the Property and observed works being carried out at the Property. They also observed building materials in situ and later removed, a skip bin with changing levels of building material waste, and workers entering the Property.

31. On 13 June 2022, 17 June 2022 and 18 June 2022, Council officers conducted further inspections of the Property and observed vehicles associated with construction parked on the street in front of the Property; workers standing in front of the Property; and workers operating a small excavator on the Property.

32. On 25 August 2022, Mr Pope inspected the Property along with Mr Adrian Guy (a solicitor in the employ of Council’s solicitors), Mr Rabi Malass (the husband of Sarah Malass) and Mr Kim (Sarah Malass’ solicitor at that time) and, identified that various works had been conducted at the Property since Mr Pope’s inspection on 22 October 2021.

33. On 12 September 2022, consequent to orders made by Pepper J on 8 September 2022 (Sarah Malass v Strathfield Municipal Council [2022] NSWLEC 116), Mr Pope again inspected the Property along with other Council officers and Mr Malass, to identify whether any works had been undertaken in the first floor bedrooms, western area of the basement and the rear area since Mr Pope’s inspection on 22 October 2021, and they identified that further works had been undertaken at the Property.

Evidence

Council’s evidence

34. Council marshalled extensive documentary and affidavit evidence, including records of inspections and observations by a number of Council officers as well as extensive photographs of the internal and external areas of the Property. Council read the following affidavits:

1. Affidavits of Bradley Ian Pope, Manager Compliance and Regulatory Services for Council, sworn 15 December 2021 and 15 September 2022;

2. Affidavit of Julide Ayas, a solicitor in the employ of Council’s solicitors, sworn 15 December 2021;

3. Affidavit of Terrence Han Rong Wong, a Development Compliance Officer for Council, sworn 14 December 2021;

4. Affidavits of Andrew Francesco Galante, a Regulatory Officer – Ranger in the employ of Council, sworn 16 December 2021, 1 April 2022 and 14 July 2022;

5. Affidavits of Almir De Barros Teixeira Junior, a Regulatory Officer – Ranger in the employ of Council, sworn 31 March 2022 and 21 July 2022;

6. Affidavit of David Grant Marks, a Regulatory Officer – Ranger in the employ of Council, sworn 7 July 2022;

7. Affidavit of Rafaat Alameddine, a Regulatory Officer – Ranger in the employ of Council, affirmed 1 July 2022; and

8. Affidavit of Adrian Peter Guy, a solicitor in the employ of Council’s solicitors, affirmed 26 July 2022.

35. The Court also received extensive photographic material exhibited to each of Mr Pope’s affidavits of 15 December 2021 and 15 September 2022.

36. As the majority of the evidence relied upon by Council relates to observations and photographs of the works “carried out” in contempt of the November Orders detailed in the table annexed to the amended statement of charge (noted at [28] above), apart from the summary of background facts noted earlier in this judgment, for concision I will briefly summarise the evidence of Mr Galante, Mr Pope, Mr Wong and Mr Junior with reference to that table conscious that much of this evidence is already summarised in the above background. I do not describe the detailed photographic evidence.

37. Mr Galante deposes that he attended the Property on 26 June 2021 and that from the footpath he observed a truck parked on the road directly outside the Property with a line pump running from the truck along the length of the eastern boundary of the Property towards the rear yard; and that he had a conversation with a male who identified himself as Sarah Malass’ father-in-law.

38. Mr Pope deposes that he attended the Property on 15 July 2021 pursuant to orders for access made by the Court on 12 July 2021 and that he observed building equipment and materials and various works being undertaken or partially completed at the Property.

39. Mr Galante deposes that he attended the Property and observed: on 19 September 2021, that the skip bin in the front yard of the Property was filled with building materials; on 24 September 2021, a male wearing an orange high visibility singlet exiting the front door with buckets filled with construction materials; and on 11 October 2021, one male (with an extension cord in hand) who appeared to be a contractor and Mr Malass exit the Property.

40. Mr Pope deposes that he attended the Property on 22 October 2021 and observed that since his previous inspection on 15 July 2021, “additional works” had been undertaken comprising the works listed aside “22 OCT 2021” in the table at [28] above. This was in addition to work involving the tidying and sorting of electrical cabling in the basement storage room and the replacement of temporary sheeting with new sheeting from the stairway leading from the basement to the ground floor.

41. Mr Wong deposes that he attended the Property on 8 November 2021 for an onsite inspection as part of the hearing of the three Class 1 appeal proceedings before Senior Commissioner Dixon (referred to at [17] and [25] above) and observed “further unauthorised works”, being those listed aside “8 NOV 2021” in the table at [28] above.

42. Mr Galante further deposes that he again attended the Property on 10 November 2021, and observed three men who appeared to be contractors outside the Property, one of whom identified themselves as undertaking electrical work “to get the lift up and running and other works so that it is readily available for Council’s next inspection”; and on 14 November 2021, observed a young male who appeared to be a contractor empty a bucket into the skip bin, as well as a male who appeared to be a contractor wearing orange high visibility clothing exit the front door of the Property.

43. Mr Junior deposes that he attended the Property on 17 February 2022 and observed that the worksite at the Property was open; that three palettes of “materials” (which had been observed on the driveway during an earlier inspection on 7 February 2022) had been removed from the driveway; the skip bin was “less full” than observed at an earlier inspection on 8 February 2022; three workers were at the rear of the worksite; and workers were cutting up materials and operating power tools.

Sarah Malass’ evidence

44. Sarah Malass read her affidavit sworn 10 October 2022, the detail of which I consider later in this judgment.

Consideration

Principles regarding the nature of contempt and imposition of penalty

45. 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]. Simply stated, a civil contempt involves disobedience of a court order in civil proceedings and 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, 539; [1995] HCA 3 (‘Witham v Holloway’). 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: Group Pty Ltd, Re v Kazal (No 4) [2017] FCA 1084 at [73].

46. There is also a distinction between a technical and non-technical contempt and between wilful and 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.

47. While both wilful and contumacious contempt involve intentional non-compliance with a court 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. Council does not submit that the contempt the subject of this judgment is contumacious.

48. The underlying rationale of the exercise of a court’s power to punish 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 (‘Kazal v Thunder’) at [97]; Mirius Australia Pty Ltd v Gage [2018] NSWSC 35 at [7], [18] (‘Mirius’).

49. Although there are no specifically identified matters that must be taken into account in sentencing for contempt, I have considered (but do not recite) the ten “factors” earlier identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, and in doing so I am conscious of (and respectfully adopt) the following summary of Ward CJ in Equity in Mirius at [8]:

“In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 (an appeal from which was dismissed by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155), Barrett J, as his Honour then was, noted the following as being matters relevant when sentencing for contempt (see [26]-[27]): the seriousness of the contempt proved; the contemnor’s culpability; the reason or motive for the contempt; whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor’s personal circumstances; the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct. This was referred to with apparent approval by the Court of Appeal (Tobias JA at [129]-[130], [137], [141], Basten JA agreeing at [181], Campbell JA agreeing) and by the Full Court of the Federal Court in Kazal (at [102]), the Court there noting that it was not an exhaustive list of potentially relevant matters.”

50. These factors were considered appropriate in the context of punishment in relation to civil contempt in: Kazal v Thunder at [102] and have also been applied by this Court in: Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [47]; Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [36]; Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 (‘Balmain Rentals’) at [36]-[40].

51. As a number of the factors noted above overlap, I have incorporated them (and the respective submissions made) in the following consideration and note that, while there had earlier been some debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to civil contempt proceedings, the present view is that despite there being some “overlap”, the principles developed to guide the discretion of a sentencing judge in criminal proceedings do not apply without qualification to punishment for contempt: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [38] (Bell P), [66] (McCallum JA); Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58] (Basten JA).

Seriousness

52. The seriousness of the contempt is an important matter in determining the appropriate penalty in relation to the charge. This involves consideration of the nature of the contempt.

53. Council submits that Sarah Malass’ conduct was the result of intentional acts in relation to an order of the Court which, although not a deliberate act of defiance, allowed works (being construction) on the Property to continue despite the November Orders and that such conduct continued after these contempt proceedings were commenced on 16 December 2021.

54. In relation to those works, Council points to the extensive evidence of observations made by Council officers at inspections of the Property on 26 June 2021, 15 July 2021, 22 October 2021, and 8 November 2021; the detailed photographic evidence that reflects the extent of work that was undertaken after (and in breach of) the November Orders; and to the particulars attached to the amended statement of charge. Council submits that there was significant building activity undertaken over a substantial period of time spanning more than one year from the time the contempt proceedings were brought, in breach of the November Orders.

55. In answer to Sarah Malass’ objections to photographic and other material marshalled after February 2022 (including more recent photographs and observations), Council submits that the Court would take into account the extensive further work undertaken after these contempt proceedings were commenced as an example either of aggravation or at least of the fact that the contempt has not been purged.

56. Council further contends that because Sarah Malass had an awareness of the consequences of her breach (given the background circumstances) that the conduct in relation to November Orders was in the moderate to high range of seriousness.

57. Council submits that the suggestion in Sarah Malass’ affidavit that there was no intention to breach the November Orders must be considered in the light of the fact that the breach to which Sarah Malass has pleaded guilty was wilful in terms of what was achieved and in the context of Sarah Malass’ involvement in various Court proceedings. That involvement cannot sit comfortably with the submission that there was some form of “inadvertence”.

58. Sarah Malass submits that, given her affidavit (which was not contested), the breach of the November Orders reflects a low level of culpability because her conduct should be seen as a “failure to exercise control over development” on the Property as the registered proprietor in circumstances where, as her evidence provides, she had a limited understanding of the Consent and the consistency, or otherwise, of the building works being undertaken the subject of the Consent, and taking into account her “mental state” at the relevant time.

59. Sarah Malass submits that the Court would further conclude that she should not be understood as someone who has flouted the authority of the Court or wilfully breached the orders and, in these circumstances, her breach amounts to a low level of culpability.

60. Having closely considered the photographic material particularly up to December 2021 and Council’s evidence depicting the works undertaken (reflecting the particulars the subject of the amended statement of charge), in circumstances where Council’s evidence is uncontested, and where (in my view) there has been little explanation for the conduct, I am satisfied beyond reasonable doubt that significant work was undertaken in breach of the November Orders.

61. To the extent that the photographic and other evidence depicting the further work being undertaken after the commencement of these contempt proceedings was received on the limited basis that none of the earlier work was “undone”, the evidence before the Court is that extensive works have been undertaken at least up until 16 December 2021 and the works have proceeded to completion including detailed fit-out and it is accepted that Sarah Malass and her family now reside in the completed dwelling.

62. Even taking into account Sarah Malass’ evidence, I do not accept that Sarah Malass’ conduct has been properly explained. While I accept that she was relatively unsophisticated in relation to business and building matters, and that she deposes that she had “issues with anxiety”, and that there were concerns that she and her family may have contracted COVID-19, I do not consider her evidence in relation to her mental health (which although uncontested, was that, at her husband’s suggestion, she did “speak to a doctor” and, thereafter, she “spoke to a psychologist”), proffers any appropriate reason or excuse for her conduct in the circumstances. I have considered her involvement, and, on the evidence, I do not consider that there was a low level of moral culpability.

63. I also take into account matters in relation to Sarah Malass’ “home life” as submitted on her behalf, however, again, it is clear that Sarah Malass was the moving party in a number of applications to Council to regularise the conduct at the Property; that she commenced a number of separate Class 1 appeal proceedings in this Court; and in these proceedings, on 9 October 2020 she appealed the DCO issued on 14 September 2020 (and therein applied for a stay of that DCO by notice of motion filed 29 October 2020 in which she had successfully argued, through her legal representative, a partial stay of the DCO).

64. Accepting that she has been a consistent party – in the sense that she, at all relevant times, had experienced legal representation acting for her in the conduct of a number of different (not unsophisticated) proceedings before the Court (all apparently relating to non-compliant development undertaken on the Property), including as the named applicant in the three applications made to Council made consequent upon, and in accordance with, the November Orders; and thereafter, the various Class 1 appeal proceedings and various interlocutory hearings in relation to the Class 4 proceedings (including proceedings before Preston J, Pain J and Pepper J) – I am satisfied beyond reasonable doubt that Sarah Malass had a proper awareness of the nature and extent of the November Orders made by Preston J and the consequence of non-compliance with those orders. In these circumstances, I do not accept the submission that her understanding of the status of the proceedings and the Court orders was “limited”, and I accept Council’s submission, and find, that Sarah Malass’ conduct was wilful, rather than inadvertent or technical.

65. Sarah Malass is the owner of the Property and an active party in a number of proceedings especially in the hearing (of her motion) before Preston J. Her conduct cannot be characterised as some inadvertent or technical breach. As such, I do not accept the submission that her conduct in relation to the November Orders could properly be characterised at a “very low level of culpability”. Even if it was seen as a “failure to exercise control” as she submits, I find the breach, in all circumstances, is of moderate seriousness.

66. I find, as Council submits and Sarah Malass accepts, that Sarah Malass, as the owner of the Property, “allowed events to occur to put her in breach of the orders” and repeat that I do not accept that the breach was technical or inadvertent particularly where the breach clearly continued for some period of time. As I have found above, there was significant work done in breach of the November Orders.

67. To the extent that it was submitted on behalf of Sarah Malass that the November Orders only regulated the work that could be done on the Property on or before 30 January 2021 (being the date by which Preston J ordered the limited works covered by the stay to be completed after which the stay was of no further effect, or were otherwise discharged on 12 May 2022 when the Class 1 proceedings were dismissed), and that thereafter the partial stay had no effect, I agree with Council’s submission that neither interpretation is correct. First, because to characterise the November Orders as conditions on a partial stay would amount to a revocation of the DCO effective from 30 January 2021; and, second, in relation to this contempt charge to which Sarah Malass has pleaded guilty, it is clear (from Malass v Strathfield Municipal Council [2020] NSWLEC 168 at [52], [57]) that Preston J intended the DCO to continue “to apply to prevent all other building work being carried out” and the November Orders were not expressed as being until further order, rather they reinforced the ongoing effect of the DCO.

Benefit/financial gain

68. In oral submissions it was submitted on behalf of Council that the conduct the subject of the contempt of the November Orders “led to the home being able to be completed and lived in” by Sarah Malass and her family and that the evidence marshalled by Council relates to the building works continuing even after these contempt proceedings were commenced with “a strong impression of benefit” to Sarah Malass which followed from works undertaken in breach of the November Orders.

69. In circumstances where there is no evidence that Sarah Malass received any direct financial gain from the breach of the November Orders (at least in regard to the progression of the works contrary to the November Orders at a time when they should not have been), although it is clear that some benefit accrued to Sarah Malass, I do not place significant weight on this factor in imposing penalty.

Deterrence and denunciation

70. I consider that in determining punishment, it is necessary to impose a penalty that denounces the contempt as well as taking into account the need for general and specific deterrence.

71. I find that there is need for general deterrence in relation to compliance with court orders to ensure that those who may otherwise be inclined to flout the authority of the Court are not tempted to do so and, therefore, to maintain the efficacy of the Court and the administration of justice. Furthermore, I consider that a breach of court orders in relation to planning law has the potential to harm the regulatory system.

72. In the circumstances, I consider that there is also a need for specific deterrence in relation to Sarah Malass due to the fact that she has also pleaded guilty to two other charges relating to non-compliance with orders of this Court.

Personal and other circumstances

73. I take into account that Sarah Malass is 34 years of age and has not been before the Court for any other reason and she would otherwise be regarded as a woman of prior good character. Although it was submitted on her behalf that she does not come from a privileged background, I do not see this as a mitigating factor.

74. As noted above, I have also taken into account her own evidence that her “mental state” at and around the relevant times may have contributed to her giving insufficient attention to matters.

75. I also take into account that, at the date of the hearing, Sarah Malass offered an apology for her conduct. The apology was offered 10 months after the filing of the notice of motion initiating the contempt proceedings, although I am informed that substituted service was not effected upon her until February 2022.

76. There was a dispute as to whether or not the plea of guilty was entered at the first available opportunity. Sarah Malass submits that the plea was offered (on 1 August 2022) when the particulars had been finalised in the amended statement of charge (on 28 July 2022). Council submits that the detailed evidence, which accompanied the notice of motion, articulated the specific conduct complained of and this material had been made available to Sarah Malass some significant time before the plea of guilty was entered.

77. In the circumstances, I accept that there has been some utilitarian value in the entry of the plea (at least to the extent that it reduced the time that may otherwise have been required for a contested hearing on liability) and I take this into account.

Capacity to pay

78. While I note Sarah Malass’ evidence that she is not “working at the moment”, and that her husband's plumbing business has suffered a “downturn”, I find that there is no specific evidence of Sarah Malass’ means to pay any penalty. Despite this, I accept Council’s submission that Sarah Malass owns a property with a substantial new three-level residence and, as such, I am not prepared to place any significant weight upon a suggestion that Sarah Malass lacks the means to pay a fine.

Comparable cases

79. Although the ascertainment of the existence of a general pattern in the imposition of penalties for contempt offences is appropriate, care must be taken because each case is different. I have had regard to a number of cases in this Court for the purpose of considering comparative sentences and I am conscious that in Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 at [38]-[41], Biscoe J noted that, having undertaken a survey of cases (although now 9 years ago), the range of penalties imposed by this Court in cases of wilful contempt have generally ranged from $7,500 to $50,000.

80. I have also had regard to a number of cases in this Court to which I have been referred, including: Balmain Rentals; Burwood Council v Ruan [2008] NSWLEC 167; Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210; Palerang Council v Banfield (No 2) [2012] NSWLEC 158 (and the cases referred to in those cases). In considering these cases, I am aware that consistency in sentencing relates to the application of relevant legal principles, and not some numerical or mathematical equivalence: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [18].

81. Taking into account the factors considered above, including the objective factors of the breach and subjective factors of Sarah Malass, including, but not limited to, her apology, guilty plea and some expression of remorse, my view that any breach of the Court’s orders is a serious matter, and having considered various penalties imposed by this Court – I consider that the appropriate penalty is the imposition of a fine in the sum of $20,000 in relation to the contempt of the November Orders offence.

Costs

82. Council seeks an order that its costs be paid on an indemnity basis, which it submits is the usual practice in contempt proceedings, and that this practice should be adopted because, first, Sarah Malass did not lead evidence or enter her plea of guilty until 1 August 2022; second, the contempt of the Court’s orders was for some time ongoing; and third, Council has prepared extensive affidavit evidence.

83. Sarah Malass submits that the Court should not award costs on an indemnity basis because the evidence marshalled by Council in these (Class 1) contempt proceedings reflects or duplicates the evidence brought in the (not unrelated) Class 4 contempt proceedings which were heard concurrently with this hearing on penalty. In those circumstances, Sarah Malass submits not only should the Court not award indemnity costs, the Court would not award the whole of Council’s costs even on an ordinary basis because a vast amount of Council’s affidavit material addresses matters outside the particularised scope of the amended statement of charge (and the charge period) that is properly within the Court’s consideration.

84. In relation to the “duplication” of the evidence relative to the two proceedings, Council submits that it was required to prosecute two discrete contempt charges (in two classes of the Court’s jurisdiction) each requiring evidence to be marshalled, and that there is nothing in Council’s conduct that could amount to what would otherwise be considered “disentitling” conduct in relation to an award of costs.

85. The Court’s power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 (NSW) and subject to the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’).

86. While I do not consider that there is a general principle or rule of law in contempt cases that a successful prosecutor is routinely awarded costs on an indemnity basis, it is at least the conventional practice in most cases to ensure persons are not deterred from bringing contempt proceedings. Furthermore, the issue of costs is discretionary and must yield to the particular circumstances of the case.

87. For completeness, I note that this notice of motion for contempt relates to orders made in Class 1 of the Court’s jurisdiction, to which the presumptive rule contained within r 3.7(2) of the Court Rules ordinary applies:

“The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.”

88. While I note that r 3.7(3) of the Court Rules provides a non-exhaustive list of circumstances in which an order for costs may be fair and reasonable, the Court is not confined to these matters. In the circumstances, I find that it is fair and reasonable that Council be awarded its costs of this contempt motion and that Council’s costs be awarded on the ordinary basis.

89. In forming this view, I note that, were it not for the fact that this contempt motion proceeded concurrently with the contempt motion in relation to the August Orders and the October Orders made by Pain J in Class 4 proceedings, and were it not for the element of commonality in the evidence and submissions marshalled, I would have awarded costs on an indemnity basis; and it is with some reluctance that I have formed the view that, contrary to the common practice, an order for costs on the ordinary basis in each of the discrete proceedings is appropriate.

Orders

90. The Orders of the Court are as follows:

1. Sarah Malass is fined the sum of $20,000 for her contempt in failing to comply with Orders (1) and 2(d) of the Court’s orders made 27 November 2020.

2. Sarah Malass is to pay the costs of Strathfield Municipal Council of the notice of motion for contempt filed 16 December 2021.

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Amendments

25 November 2022 - The words “within 28 days of the date of this judgment” deleted from paragraph [90(2)].

Decision last updated: 25 November 2022