Mosman Municipal Council v Kelly (No 3)

[2009] NSWLEC 92

Reported Decision: 167 LGERA 91

Land and Environment Court

of New South Wales

CITATION:	Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Mosman Municipal Council RESPONDENT: David Kelly
FILE NUMBER(S):	40967 of 2006
CORAM:	Biscoe J
KEY ISSUES:	CONTEMPT :- disobedience of an order to demolish a garage within a specified time - whether a proceeding for criminal or civil contempt - whether statement of charge deficient because did not allege that disobedience was contumacious - whether order had to be served - whether order void because no power to make it - whether order impossible of performance within the time specified
LEGISLATION CITED:	Civil Procedure Act 2005, ss 3, 103, 130, 131, 133(1), 138(1) Environmental Planning and Assessment Act 1979, s 76A Land and Environment Court Act 1979, s 5 Land and Environment Court Rules 2007, r 4.5 Supreme Court Act 1970, s 101(6) Supreme Court Rules 1970, Pt 42 (repealed), Pt 55 rr 6, 7, 8, 9, 13 Supreme Court (General Civil Procedure) Rules 1996 (Vic), r 66.10 Uniform Civil Procedure Rules 2005, rr 36.4(1), 36.5, 36.16, 40.6, 40.7, Pt 36, Pt 40
CASES CITED:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Arnold v Minister Administering the Water Management Act 2000 (No 3) [2009] NSWLEC 56 Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Attorney-General v Newspaper Publishing Plc [1988] Ch 333 Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Consolidated Press v Morgan [1965] HCA 21, (1965) 112 CLR 483 Bailey v Marinoff [1971] HCA 49, (1971) 125 CLR 529 Boddington v British Transport Police [1999] 2 AC 143 Burwood Council v Ruan [2008] NSWLEC 167 Chiltern District Council v Keane [1985] 1 WLR 619 Coward v Stapleton [1953] HCA 48, (1953) 90 CLR 573 DJL v The Central Authority [2000] HCA 17, (2000) 201 CLR 226 Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 Harmsworth v Harmsworth [1987] 1 WLR 1676 Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 Home Office v Harman [1983] 1 AC 280 Hurstville City Council v Jacobs [2007] NSWLEC 630 Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 Lade & Co. Pty Ltd v Black [2006] 2 Qd R 531 Markisic v Commonwealth of Australia [2007] NSWCA 92, (2007) 69 NSWLR 737 Matthews v Australian Securities and Investments Commission [2000] FCA 288, (2007) 97 FCR 396 McDonnell v Novello [2006] NSWSC 1186 Miller v Eurovox Pty Ltd [2004] VSCA 211 Mosman Municipal Council v Kelly [2007] NSWLEC 90 Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195, (2007) 70 NSWLR 411 Owners Strata Plan 37762 v Pham [2007] NSWLEC 252, (2007) 154 LGERA 150 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19, (1999) 198 CLR 435 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Re M; M v Home Office [1994] 1 AC 377 Re Tuck [1906] 1 Ch 692 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 Ch 422 Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 Tweed Shire Council v Mannix (1983) 50 LGRA 369 Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525
TEXTS CITED:	Arlidge, Eady and Smith on Contempt, 2nd ed (1999) George Robertson, Oswald’s Contempt of Court, 3rd ed (1910)
DATES OF HEARING:	26 May 2009
DATE OF JUDGMENT:	19 June 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Griffiths, solicitor SOLICITORS Pike Lawyers RESPONDENT: Mr P King, barrister SOLICITORS McKells

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 June 2009

40967 of 2006

MOSMAN MUNICIPAL COUNCIL v KELLY (NO 3)

JUDGMENT

1 HIS HONOUR: Mosman Municipal Council charges the respondent Mr David Kelly with contempt for disobeying an order made by the Court on 31 July 2008 that:

“The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as No. 91 Ourimbah Road, Mosman within a period of four (4) months from 31 July 2008.”

2 The council seeks a declaration that he be found guilty of contempt and punished by a fine. The respondent defends the charge.

BACKGROUND

3 The respondent is the owner of the property known as No. 91 Ourimbah Road, Mosman.

4 On 25 November 1999, Mosman Municipal Council granted development consent for the demolition of a shed and the construction of a double garage on the property subject to conditions. Although no construction certificate has been issued, a garage has been erected which does not bear any physical resemblance to the garage which was the subject of the consent. On 12 October 2006, the council commenced proceedings in this Court seeking an order that the respondent demolish the unauthorised structure.

5 After several unsuccessful attempts to serve him with the originating process, the Court made an order for substituted service to be effected by affixing copies of the application and points of claim to the front door of the premises and by sliding copies of the same documents under the front door. The documents were duly affixed to the front door on 28 November 2006, but were unable to be slid under the door due to a fixture placed at the base of the door. Accordingly, the Court made further orders on 15 December 2006 for substituted service to be effected by fixing the application and points of claim together with a formal notice of hearing to the front door of the premises.

6 On or about 28 December 2006, the application, points of claim, the orders of 15 December 2006 and a letter advising the respondent that the matter had been listed for hearing on 19 February 2007 were affixed to the front door of the premises.

7 On 19 February 2007, the matter came before Jagot J. There was no appearance by or for the respondent. Jagot J heard the case in the absence of Mr Kelly: Mosman Municipal Council v Kelly [2007] NSWLEC 90.

8 Her Honour was satisfied by the evidence that the erection of the garage structure was development which required development consent under the relevant environmental planning instrument and that no development consent had been obtained for the garage structure.

9 Her Honour was also satisfied by the evidence that the respondent was the owner of the property, that he constructed or caused to be constructed the garage structure on the property and that he thereby caused a breach of s 76A of the Environmental Planning and Assessment Act 1979.

10 Her Honour noted the evidence advanced on behalf of the council relating to a number of concerns about the garage structure (at [23]):

“(1) the structure is of excessive height, bulk and scale,
(2) the structure results in the absence of any material landscaping in the rear yard,
(3) the structure may involve a possible breach of the Council’s floor space ratio control in cl 15 of the LEP [Local Environmental Plan],
(4) the guttering appears to be unconnected and may cause a nuisance to neighbours,
(5) there is an absence of setback from the side boundary, particular to the east,
(6) the driveway grades from the structure to Rosebery Lane, which is a public road, are possibly inappropriate, and
(7) the Council has not had the opportunity to assess or consider the type of information generally available if an application for the erection of the structure had been lodged or indeed the type of information that would otherwise be generally available to the Council had it in any way been involved in an assessment process, to ensure the health and safety of persons using the structure and others... .”

11 Her Honour was satisfied, having regard to the extent of the breach, that it could not be characterised as merely trivial or technical, and that an order should be made that Mr Kelly demolish the structure.

12 An order was accordingly made on 19 February 2007 in the following terms (at [27]):

“The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman within a period of two months after the expiration of the stay of this Order in accordance with Order (2) below.”

13 The second order made by her Honour was for a stay postponing the operation of the order for a period of sixty days.

14 The third order made by her Honour was that the order was to be served on the respondent by affixing a sealed copy of the order to the front door of the premises at 91 Ourimbah Road, Mosman. The final order made by her Honour was that the respondent pay the applicant’s costs.

15 On 31 July 2008 Lloyd J heard and determined an application by the respondent for an order that the judgment of Jagot J be set aside: Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229. His Honour made the following orders:

“1 Leave is granted for short service of the respondent’s notice of motion filed on 24 January 2008 seeking to set aside the Court’s orders and judgment of 19 February 2007.
2 The respondent’s notice of motion filed on 24 January 2008 seeking to set aside the Court’s orders and judgment of 19 February 2007 is allowed in part.
3 Order 1 dated 19 February 2007 is varied to read:
The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as No. 91 Ourimbah Road, Mosman within a period of four (4) months from 31 July 2008.
4 The respondent must pay the Mosman Municipal Council’s costs of the notices of motion as agreed or assessed.”

16 The hearing before Lloyd J took place on 13 May and 31 July 2008 when his Honour delivered an ex tempore judgment. The respondent was present in Court throughout the hearing before Lloyd J, including when his Honour delivered judgment and made orders. He was represented at the hearing before Lloyd J by his agent.

17 The orders made by Lloyd J were entered, sealed and signed by the Registrar of the Court on 31 July 2008, and endorsed with a notice to the respondent that “If you disobey this order you will be liable for imprisonment, a fine or sequestration of your property”.

18 Between August and November 2008 numerous attempts were made to serve the respondent with the orders but without success.

19 On 8 December 2008 the council’s solicitors wrote to the respondent referring to the orders of Lloyd J requiring him to demolish the garage by 30 November 2008; requesting him to explain within 7 days why it had not been demolished; and stating that, unless the council heard from him, it saw little option but to refer the matter back to the Court as, on the face of it, there appeared to be a further contempt.

20 The notice of motion for contempt, statement of charge pursuant to Part 55 r 7 of the Supreme Court Rules 1970 and a supporting affidavit were filed in February 2009 and were personally served on the respondent on 20 February 2009.

21 The statement of charge recounts the orders made by Jagot J on 19 February 2007; the substituted service of those orders on the respondent on 22 February 2007; the variation of the first order by Lloyd J on 31 July 2008; and the failure of the respondent to comply with the order as varied by demolishing the garage.

22 At the hearing of the contempt motion, the respondent did not give evidence. There was no evidence in the respondent’s case except for evidence to the effect that the period of four months for demolition referred to in the order was insufficient.

THE PRIMA FACIE POSITION

23 The order took effect as of the date on which it was made: r 36.4(1)(a) Uniform Civil Procedure Rules 2005 (UCPR). The evidence establishes that the respondent was present during the hearing before Lloyd J, including when the orders were made. Although the respondent was not served with the order, the contempt rules in Pt 55 of the Supreme Court Rules 2005 (SCR), which have been adopted in the Land and Environment Court Rules 2007 r 4.5, do not mandate service of the order.

24 Disobedience of an order is a contempt of court: Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525; Hearne v Street [2008] HCA 36, (2008) 235 CLR 125. All species of contempt must be proved beyond reasonable doubt: Witham. The uncontested evidence establishes beyond reasonable doubt that the respondent has disobeyed the order. Prima facie, the respondent is in contempt of court.

25 The respondent submits that he is not guilty of contempt for the following reasons:

(a) this is a proceeding for criminal contempt for disobeying a court order, disobedience of a court order is criminal if the disobedience was contumacious, therefore the statement of charge is defective because it does not allege that the disobedience was contumacious;
(b) the order was not entered and served;
(c) the order is void because there was no power to make it;

(d) the order was impossible of performance within the time specified.

26 I do not accept the submissions.

27 Before expressing my reasons, it is necessary to consider the statutory regime for contempt proceedings and for the enforcement of orders.

THE STATUTORY REGIME

28 The Civil Procedure Act 2005 (CPA) distinguishes between contempt proceedings for disobeying court orders, which it does not regulate, and proceedings for enforcement of orders other than by way of contempt proceedings, which it regulates to a limited extent. The CPA defines “judgment” broadly and non-exhaustively to include any order for the payment of money: s 3. Sections 103, 130, 131,133(1) and 138(1) are relevant and provide:

“ 103 Enforcement of judgments generally

Subject to this Part, the procedure for enforcing a judgment or order of the court is to be as prescribed by rules of court.

130 Judgments not enforceable by certain means

A judgment or order is not enforceable against a person:

(a) by any process for attachment of the person, or
(b) by any process for committal of the person, or
(c) by any writ of capias ad satisfaciendum

131 Committal for contempt

Nothing in this Act or the uniform rules limits or otherwise affects the power of the court to attach or commit a person for contempt.

133 Judgments and orders unenforceable until entered

(1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.
…

138 Other methods of enforcing judgments

(1) Nothing in this Part limits the manner in which a judgment or order of the court may be enforced apart from this Act.”

29 Sections 138(1) and 131 recognise, I think, that punishment for contempt may be another way of enforcing an order.

30 Section 130 prohibits enforcement of an order by, inter alia, attachment and committal. Both were processes leading to imprisonment. The differences between them were highly technical. In England the process of attachment has been abolished: Arlidge, Eady and Smith on Contempt 2nd ed, (1999) [1-84], [15-4] to [15-7]; see also Oswald’s Contempt of Court, 3rd ed (1910) at 23 ff. So too in New South Wales: CPA s 130(a).

31 A judgment or order takes effect “as of the date on which it is given or made” unless the court orders that it not take effect until it is entered: r 36.4(1)(a) UCPR. UCPR 36.5 provides:

“ 36.5 Time for compliance with judgments and orders

(1) If a judgment or order requires a person to do an act within a specified time, the court may, by order, require the person to do the act within another specified time.
(2) If a judgment or order requires a person:
(a) to do an act forthwith or forthwith on a specified event, or
(b) to do an act but does not specify a time within which he or she is required to do the act,
the court may, by order, require the person to do the act within a specified time.”

32 UCPR Pt 40 regulates in different ways the enforcement of judgments for the payment of money (Division 1) and judgments requiring a person to do an act within a specified time or abstain from doing an act (Division 2). Division 2 permits only two methods of enforcement for judgments to which it applies: committal and sequestration. It imposes service preconditions for enforcement by committal or sequestration: a sealed copy of the judgment has to be served personally on the person bound and within the time specified in the judgment for doing an act, and the sealed copy must bear a prescribed penal notice. However, such service is unnecessary (except in the case of a subpoena) if the person is present when judgment is directed to be entered or is notified of the terms of the judgment. The court may dispense with service. These provisions appear in UCPR 40.6 and 40.7 as follows:

“ 40.6 Doing or abstaining from doing an act

(1) This rule applies in the following circumstances:
(a) if:
(i) a judgment requires a person to do an act within a time specified in the judgment, and
(ii) the person fails to do the act within that time or, if that time is extended or abridged, within that time as extended or abridged,
(b) if:
(i) a judgment requires a person to do an act forthwith, or forthwith on a specified event, and
(ii) the person fails to do the act as so required,
(c) if:
(i) a judgment requires a person to abstain from doing an act, and
(ii) the person disobeys the judgment,
but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court).

(2) In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means:
(a) committal of the person bound by the judgment,
(b) sequestration of the property of the person bound by the judgment,
(c) if the person bound by the judgment is a corporation:
(i) committal of any officer of the corporation, and
(ii) sequestration of the property of any officer of the corporation.


40.7 Service of copy of judgment before committal or sequestration

(1) A judgment is not enforceable by committal or sequestration unless:
(a) a sealed copy of the judgment is served personally on the person bound by the judgment, and
(b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged.
(2) If the person is a corporation, the judgment is not enforceable by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under subrule (1):
(a) a sealed copy of the judgment is served personally on the officer, and
(b) if the judgment requires the corporation to do an act within a specified time, the sealed copy is so served before that time expires.
(3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:
(a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or
(b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or
(c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.
(4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment:
(a) by being present when the judgment is directed to be entered, or
(b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,
the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.
(5) The court may dispense with service under this rule.

(6) This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena.”

33 UCPR Pt 40 does not regulate proceedings to enforce a judgment or order by way of a fine. That is important for present purposes because the council seeks only a fine. In contempt proceedings a fine may be the preferable way of enforcing an order. For example, in contempt proceedings in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, where a trade union had failed to comply with an injunction, the High Court upheld an order that fined the Union for breach of the injunction and a further fine for each day that the injunction continued, effectively combining punitive and coercive orders.

34 SCR Pt 55 governs proceedings for punishment for contempt. Part 55 contains no service requirements. Punishment where the contemnor is not a corporation is limited to committal to a correctional centre or fine or both; and, where the contemnor is a corporation, to sequestration or fine or both. The following provisions of Pt 55 are relevant:

“ 6 Procedure generally

(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.
(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.

8 Evidence

(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.
(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.

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.
(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration 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.”

35 There is a question as to how the UCPR 40.6(2)(a) provision for enforcement by committal can survive the CPA s 130(1)(b) prohibition of enforcement by committal. The answer may lie in the provision for punishment by committal in the contempt rules, in SCR Pt 55, which are not affected by the CPA: s 131.

36 The relationship between SCR Pt 55 and UCPR Pt 40 is unclear. The unclear relationship between SCR Pt 55 and the predecessor to UCPR Pt 40, namely SCR Pt 42, was noted by McHugh J in Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525 at 544 fn 105, as follows:

“The power to fine, where a fine is applicable, is found in Pt 55, r 13. The relationship between Pts 42 and 55 is unclear. Although Pt 55 relates to both criminal and civil contempt, the relationship between the two Parts is not defined. It is perhaps arguable that the specific references to disobeying a judgment or order and the consequential remedies given in Pt 42 are intended to qualify the general statement of powers in Pt 55 in relation to contempts involving disobedience of orders.”

37 In contempt proceedings in Miller v Eurovox Pty Ltd [2004] VSCA 211, the Victorian Court of Appeal treated Order 66.10 of the Victorian Supreme Court (General Civil Procedure) Rules 1996, which is similar to NSW UCPR 40.7, as qualifying the Victorian Supreme Court’s power to punish for contempt by committal or sequestration. They did not refer to McHugh J’s dictum in Witham but in effect they accepted the argument that his Honour suggested. They did not expressly consider the possibility that Order 66.10 was an independent and alternative regime to the contempt procedure for enforcement of an order by way of contempt proceedings. The appellants were found guilty of contempt for disobeying a freezing order and sentenced to imprisonment. The Court of Appeal held that they could not be sentenced to imprisonment because they had not been served with a copy of the order endorsed with the prescribed penal notice required by Order 66.10. Vincent JA (Batt and Buchanan JJA agreeing) held:

“…it is apparent, in my view, that a clear distinction is made in the Rules between the penalties of committal and sequestration on the one hand, and the imposition of a fine on the other. Order 66.10 is applicable only to the enforcement of orders by sequestration or committal. Under Order 75.11 contempt may be punished, in the case of a natural person, by committal to prison or a fine or both. It does not seem to me that the absence of the endorsement required, if the order is to be enforced by possible imprisonment, would remove the power of the Court to impose a fine.”

38 As a result of the decision in Miller v Eurovox and the dictum of McHugh J in Witham v Holloway, it appears that UCPR Pt 42 qualifies SCR Pt 55 to the limited extent that it is applicable. In particular, in contempt proceedings, the contemnor cannot be punished for contempt by way of committal or sequestration for disobeying an order requiring a person to do an act within a specified time unless a sealed copy of the order has been served on the contemnor endorsed with the prescribed penal notice as required by UCPR 40.7 (unless the exception in 40.7(4) applies or the court dispenses with service under 40.7(5)).

39 As UCPR Pt 40 has nothing to say about punishing a contemnor by way of fine for disobeying such an order and as the applicant seeks only a fine, the present proceeding is not regulated by UCPR 40.6 and 40.7.

40 I now turn to consider the respondent’s submissions summarised at [25] above.

WHETHER A CRIMINAL CONTEMPT PROCEEDING: SUFFICIENCY OF THE STATEMENT OF CHARGE

41 First, the respondent submits that this is a proceeding for criminal contempt, disobedience of a court order is criminal if the disobedience was contumacious, and the statement of charge is therefore defective because it does not allege that the disobedience was contumacious. The respondent submits that the contempt proceeding is criminal rather than civil because (a) the language of “punishment” and “fine” in the notice of motion and in the applicant’s submissions indicate that the purpose is punitive and therefore criminal; (b) the Court has no power to fine for civil contempt; and (c) the order was incapable of being enforced once the time for compliance expired and therefore the purpose of the proceeding is to punish the respondent for a past breach, and is not remedial or coercive.

42 The applicant disavows that its purpose was to bring proceedings for criminal contempt. I do not think that the subjective purpose, one way or the other, of an applicant is determinative of whether or not a contempt proceeding is civil or criminal. The applicant submits that it is immaterial to its case whether or not the disobedience was contumacious; characterisation of the disobedience as “contumacious” is not its word; and that this characterisation is being thrust upon it by the respondent. I accept those submissions, as far as they go.

43 Contrary to the respondent’s submission, the references in the applicant’s notice of motion and submissions to “punishment’ and “fine” do not indicate that this proceeding is for criminal contempt. SCR Pt 55 uses those words, but applies to both civil and criminal contempt.

44 In support of the submission that there is no power to fine for civil contempt and that therefore this must be a criminal contempt proceeding, the respondent refers to the view of Windeyer J in Australian Consolidated Press v Morgan [1965] HCA 21, (1965) 112 CLR 483 that the Supreme Court of New South Wales did not have power to fine for a civil contempt of disobedience to an order. The submission overlooks that Windeyer J specifically acknowledged that it all depended on the rules of court, because his Honour referred to the Queensland rules of court which did empower the court to impose a fine for disobedience of a court order: at 500. Whatever the position was in 1965, now the NSW rules of court, in SCR Pt 55, empower the Court to fine a defendant in both civil and criminal contempt proceedings. Further, as McHugh J said in Witham v Holloway, under SCR Pt 55 a person can be fined or committed to prison by way of punishment for breach upon proof of wilful disobedience rather than upon proof of contumacy: at 543.

45 The theoretical bases of the distinction between civil and criminal contempt was addressed in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 as follows:

“Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as ‘civil contempt’; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as ‘criminal contempt’: Fox, History of Contempt of Court (1927), p. 1…
…
The principal theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive…”

46 The High Court described these theoretical bases as unsatisfactory (at 107) and said that there was very great difficulty in maintaining the distinction and in elaborating a precise and certain criterion for the distinction (at 108).

47 The distinction between civil and criminal contempt was considered in Arnold v Minister Administering the Water Management Act 2000(No 3) [2009] NSWLEC 56 where I held that the Commonwealth of Australia was immune from proceedings for criminal contempt. In that case the alleged contempt, which I held to be a criminal contempt, was said to have been a threat not to make an ex gratia payment to the applicant if the applicant continued a legal proceeding against the Commonwealth.

48 Disobedience to a court order in a civil proceeding is a civil contempt but amounts to criminal contempt if it involves deliberate defiance; that is, as is sometimes said, if it is contumacious. This appears clearly in Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525, which explained in detail why the historical distinction between civil contempt and criminal contempt is unsatisfactory. There the defendant was found guilty of contempt in failing to comply with an order requiring him to set out in an affidavit detail of his property and a subsequent freezing order requiring him not to reduce the value of his property below a specified amount. He was committed to prison for one month. The trial judge decided the case on the balance of probabilities and was upheld by the Court of Appeal. The High Court held that was an error because the standard of proof was beyond reasonable doubt in all contempt cases, whether or not they were historically characterised as criminal or civil contempts. The joint judgment explained the difference between civil and criminal contempt as follows (at 530, omitting citations):

“In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd as involving ‘arbitrary classification’, disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt.”

49 Similarly McHugh J, concurring in the result, held at 538-539 (omitting citations):

“…Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has ‘a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest.’"

50 The joint judgment rejected the proposition that the distinction between civil and criminal contempt lay in the difference between proceedings which were remedial or coercive in the interests of a private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process: at 531-534. They indicated that a breach of an order that cannot be remedied is a civil contempt. They gave as an example the freezing order in that very case, that the defendant not reduce his assets below a specified sum, which could not then be remedied once he had done so: at 532. While it may be true that breach of such a freezing order literally cannot be remedied, a contempt proceeding for the breach, in my view, is nevertheless primarily concerned with coercion, seeking to compel the respondent to restore the assets spirited away and thus, in substance, to carry out the terms of the order: Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 Ch 422 at 443 per Nicholls LJ.

51 In Witham, the joint judgment held that punitive and remedial objects are inextricably intermixed; nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive” since punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes; the differences between civil and criminal contempt are illusory in significant respects; all proceedings for contempt must realistically be seen as criminal in nature; and consequently all charges of contempt must be proved beyond reasonable doubt: at 534.

52 McHugh J, after expressing similar views, said that there was a strong case for abolishing the distinction between criminal and civil contempt; but that it was sufficient in that case to say that the standard of proof was beyond reasonable doubt; and that “although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt”: at 549.

53 The views in Witham were consistent with earlier strong views in the English courts to the effect that the distinction between civil and criminal contempt should be jettisoned (Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 362 per Donaldson MR) and was no longer of much importance (Home Office v Harman [1983] 1 AC 280 at 310 per Lord Scarman).

54 In deciding that the standard of proof is the same, namely the criminal standard, Witham appeared to sound the death-knell of any practical distinction at trial between criminal and civil contempt in relation to disobedience to orders.

55 However, the distinction had to be recognised in the context of appeal rights in Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 because s 101(6) of the Supreme Court Act 1970 distinguishes between criminal and civil contempts by excluding an appeal from a judgment or order by which a person has been found not guilty of criminal contempt. In that case, directors of two company that were defendants in litigation, were charged with contempt for breach of an implied undertaking to the court not to use documents served on behalf of the plaintiff for any purposes not directly concerned with the conduct of the proceedings. The charges were dismissed. The plaintiffs appealed successfully to the Court of Appeal, notwithstanding the legislative exclusion. An appeal by the directors to the High Court failed. The High Court and a majority of the Court of Appeal held that the directors were guilty of civil contempt and therefore the legislative appeal exclusion was inapplicable.

56 The High Court held that, in light of the history of the matter, the proceedings were not punitive and were therefore civil: at [141]. They considered that the characterisation of the proceedings turned on whether their purpose was remedial or coercive (civil contempt) or punitive (criminal contempt). Thus, there appears to have been a revival of the punitive/remedial or coercive dichotomy, which was not favoured in Witham. This result seems to have been influenced by the agreement of the parties with that method of characterisation. In that regard, it was held at [133] (omitting citations):

“In the end the appellants departed from any suggestion that all contempts were criminal by supporting the dissenting opinion of Handley A-JA that the question whether an appeal lay to the Court of Appeal from the dismissal of proceedings for contempt depended on whether ‘it clearly appears that the proceedings are remedial or coercive in nature’ as distinct from being punitive. The distinction between that which is remedial or coercive on the one hand and that which is punitive on the other corresponds with the distinction between seeking to ensure compliance with the relevant obligation and seeking to punish for past breaches of it. It is a distinction to be applied, as the parties agreed, bearing in mind the need to approach the application of the person seeking the remedies for contempt by reference to its substantial character, not to merely formal or incidental features. On the facts, Handley A-JA considered that the purpose was not remedial or coercive, but punitive. On the other hand, the analysis of the facts made by the majority led them to the opposite view.”

57 The High Court’s conclusion that the contempt proceedings were not punitive and hence were civil was reached notwithstanding that the breach could not be remedied. The conclusion flowed from their Honours’ analysis of the history of the proceedings, as the plaintiffs must have seen it: at [134] - [141]. The analysis showed that there was no apology or undertaking by the defendants to avoid repetition and that the contempt proceedings could reasonably be seen as having a deterrent purpose.

58 Thus, disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if:

(a) the disobedience was contumacious: Witham v Holloway ; or
(b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street .

59 The former focuses on the nature of the contempt. The latter focuses on the purpose of the contempt proceedings.

60 It is difficult to see why there are not common statutory appeal rights for civil and criminal contempts in NSW, as there are in England: Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 362 per Donaldson MR. Once the criminal standard and appeal rights are the same, of greater assistance than the civil/criminal distinction is a categorisation (along the lines suggested by Donaldson MR) between (a) a breach, or assisting in the breach, of a court order, and (b) other conduct which involves an interference with the due administration of justice. As Donaldon MR said, what distinguishes the two categories is that generally the former is a matter for the parties to raise by complaint to the Court, whereas the latter is generally a matter for the Attorney-General (or other appropriate officer) to raise: at 362. I suggest that this proposal is deserving of consideration by the law reform commission, bearing in mind the strong judicial criticisms of the existing distinction between criminal and civil contempt including the dictum of McHugh J in Witham that there is a strong case for abolishing the distinction.

61 Fastening upon the punitive/remedial or coercive dichotomy, the respondent submits that as the order in the present case required demolition within a certain time, once the time expired it was impossible to remedy the breach, therefore the contempt proceeding must be punitive and criminal.

62 If the submission is correct, then all contempt proceedings for breaches of court orders to do something within a certain time are criminal in nature, as are all contempt proceedings for breaches of court orders that can no longer be remedied. Those consequences would drive a horse and cart through the general rule that disobedience to an order in civil proceedings is a civil contempt. There is no authority for such a sweeping submission and I do not accept it. In my opinion, both species of orders fall within the general rule. As regards orders to do something within a certain time, this is clear from UCPR 40.6, which says that a judgment requiring a person to do an act within a specified time where the person fails to do the act within that time, may be “enforced”; similarly, r 40.7 uses the word “enforceable”. As regards breaches of orders that can no longer be remedied, this is apparent from the analysis in Witham at 532 noted at [50] above and from the following observation of Basten JA in the Court of Appeal in Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 at [128]:

“As was noted in Witham (at p 532) there may be cases in which a remedial order cannot be made simply because it is beyond the ability of the party in breach to rectify the breach…In itself, that consideration would not appear to affect the classification of the contempt.”

63 The present case is analogous to some extent with Hearne in that there has been no undertaking by the respondent to demolish the garage and, in my view, the contempt proceedings serve a coercive or deterrent purpose. The fact that the time for compliance specified in the order has passed does not detract from the coercive or deterrent purpose of the contempt proceeding. A mandatory order has no efficacy unless it prescribes a time for compliance, for otherwise the contempt sanction for disobedience is unavailable (and UCPR 40.6 and 40.7 are inapplicable). The object of such an order is to coerce the respondent into doing something. Time for compliance is ancillary to that object. Such an order is capable of enforcement after the time for compliance is past – as is clear from the terms of the UCPR 40.6 and 40.7. Punishment such as committal or a weekly fine for so long as contempt of such an order continues can be seen to have the purpose of deterring a respondent from continuing to fail to do that which the order required or, to put it another way, of coercing the respondent into doing that which the order required. Thus, the object of the order may be achieved, albeit tardily. To my mind, the possibility that the Court may (or may not) at the end of a hearing on penalty, conclude that there should also be punishment for past breach, is irrelevant.

64 For these reasons, in my opinion, this is a civil contempt. Therefore, the criminal contempt premise of the respondent’s argument that the statement of charge is defective because it does not allege contumacious disobedience is not established.

65 Furthermore, contumacy in my opinion is only relevant to penalty and not to whether a contempt has been committed, and it is difficult to construe the rule providing for a statement of charge as requiring the statement of charge to state a matter that is only relevant to penalty. SCR Pt 55 r 7 provides for a statement of charge as follows:

“ 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.”

66 The fundamental principle underlying a statement of charge is one of elementary justice, as stated in Coward v Stapleton [1953] HCA 48, (1953) 90 CLR 573 at 579-580:

“…it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him…The gist of the accusation must be made clear to the person charged…

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.”

67 The principles relating to the formulation of a statement of charge were summarised by the Full Federal Court in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 at [32] as follows (omitting citations):

“(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt;
(b) parties accused of contempt are entitled to know the gist or substance of the charges against them;
(c) where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence;
(d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice;
(e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges;
(f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and,
(g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party's case would have been unaltered.”

68 In the much cited case of Harmsworth v Harmsworth [1987] 1 WLR 1676 (CA) at 1682, Nicholls LJ quoted with approval from the judgment of Sir John Donaldson MR in Chiltern District Council v Keane [1985] 1 WLR 619 at 622, as follows:

“The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge? If, for example, a defendant is subject to an injunction to leave a stated house not later than a particular time on a particular day, then it would be sufficient to say that he had failed to comply with that order, because it only permits of one breach, namely failure to leave the house by the time stated.”

69 Similarly, in McDonnell v Novello [2006] NSWSC 1186 at [26] Barrett J, addressing the sufficiency of a statement of charge, said:

“Where the order in question requires a particular act to be performed and the allegation is that the act was not duly performed, the particulars will, of their nature, generally be brief.”.

70 The present case is no different. It is sufficient for the statement of charge to say that the respondent failed to comply with the order, because it only permits one breach, namely failure to demolish the garage by the time stated. That is what the statement of charge does, fulsomely. It includes a statement to the effect that the respondent failed to demolish the garage by the time required by the order, or at all.

71 As contempt is simply disobedience to a court order, the contemnor’s state of mind, in particular whether the disobedience was contumacious, in my opinion, is irrelevant to whether there was a contempt. It is only relevant to penalty. I analysed the authorities supporting this proposition in Burwood Council v Ruan [2008] NSWLEC 167 at [7] – [14]. It is convenient to substantially repeat that analysis.

72 There are three classes of contempt: technical, wilful and contumacious. Technical contempt is where disobedience of a court order (or undertaking to the court) is casual, accidental or unintentional. Wilful contempt is where the disobedience is more than that, but is not contumacious. Contumacious contempt is where there is a specific intention to disobey a court order or undertaking to the court, which evidences a conscious defiance of the court’s authority. Although a contempt may be established, in the circumstances of the case the court may decide not to make any order. The element of intention is relevant to whether any order should be made and, if so, to punishment. These propositions are, in my view, supported by the following authorities.

73 The phrase “casual, accidental or unintentional” was used by the High Court in Australasian Meat Industry Employees’ Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 107 (in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ) and in Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19, (1999) 198 CLR 435 at [147] fn [156] (by Kirby J) as well as Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 at [59(c)]. The phrase was originally coined in the slightly different conjunctive form “casual or accidental and unintentional” in Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 (CA), which was quoted in Witham v Holloway (1995) 183 CLR 525 at 542 by McHugh J. The meaning of the word “casual’ is unclear.

74 The three classes of contempt were recognised in the High Court by Kirby J in Pelechowski at [147] and by the Court of Appeal in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314-315 by Kirby P (Hope A-JA agreeing), as I observed in Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 at [30]. In Pelechowski at [147] – [148] Kirby J noted that technical contempts are sometimes called ‘casual, accidental or unintentional’ contempts and said (omitting citations):

“The underlying purpose of the law on this form of contempt is to vindicate the due administration of justice. Contempts of the kind illustrated in this case may be technical, wilful but without a specific intent to defy the authority of the Court and contumacious. In the last category a serious act of deliberate defiance of judicial authority is evidenced.

Conceding that such categories of contempt may sometimes overlap, in a case of a technical contempt, where the contemnor has offered an apology which the Court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court’s orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.’”

75 In Maniam (above) at 314-315, Kirby P (Hope A-JA agreeing) made similar observations, noting that for technical contempts the court will usually accept an apology from the contemnor but may order the contemnor to pay costs.

76 Earlier, in Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367 the Court of Appeal (Street CJ, Hope and Reynolds JJA) stated:

“…[T]he development of a distinction between what Lord Diplock in Attorney-General v Times Newspapers Ltd called ‘conduct which is within the general concept of ‘contempt of court’ (often called ‘technical contempt’) and ‘conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case’. This distinction was also referred to by Lord Reid:’…there must be two questions; first, was there any contempt at all, and, secondly, was it sufficiently serious to require, or justify the court in making, an order against the respondent?’ …
It would be wrong to assume that it follows that there are two forms of contempt, one being ‘technical contempt’ and the other being ‘actual’ contempt. ‘Technical’ contempt is contempt. For a variety of reasons, although contempt is established, the court may decide ‘not to exercise its summary jurisdiction’. These words simply mean that in the circumstances of the case, the court may decide to take no action in the matter. In a long history of reported judgments, courts have expressed the reasons why they have decided to take action, or not to take action. Sometimes these reasons have tended to obscure whether the question being dealt with is what constitutes contempt, or what the court should do in the particular case. As Lord Reid pointed out in Times Newspapers Ltd case, it is confusing to import into the question whether there is any contempt at all, or into the definition of contempt, matters which are related to the course which the courts will take, contempt having been established. In considering the reported decisions, it is important to appreciate this possible source of confusion.”

They continued at 370:
“If contempt has been established, the question arises whether the court should exercise its summary jurisdiction to punish. …
…
…Once contempt is established, the court has to decide what action it should take, in the light of all the circumstances of the particular case. It should not punish simply because contempt has been established; and it must be careful to satisfy itself that the circumstances require that it exercise its jurisdiction.”

77 The irrelevance of intention to contempt and its relevance to penalty were also emphasised in Ainsworth v Hanrahan (1991) 25 NSWLR 155. The opponent was found to have committed a technical contempt, and to have acted without intention to interfere with the administration of justice. Kirby P (Samuels and Handley JJA agreeing) said at 168: “Intention is always relevant to punishment for contempt. Clearly, this is not a case where any punishment is called for”. A declaration was made that a contempt had occurred but the claimant was deprived of any costs.

78 Similarly, in Re M; M v Home Office [1994] 1 AC 377 at 426-427 Lord Woolf approved the dictum of Lord Oliver in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217-218:

“The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited.”

79 In Mudginberri the High Court (in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ) suggested that no punishment should be imposed by way of fine where the contempt is merely technical but may be imposed where it is wilful. They held:

“More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional (at 106-107).

In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (at 109).

…[T]he reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional (at 113).”

80 McHugh J took the same view in Witham at 541:

“But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt (Mudginberri …). That power exists where the breach has not been the result of ‘casual, or accidental and unintentional disobedience’ ( Fairclough v Manchester Ship Canal Co (1897) 41 Sol Jo 225). If, therefore, the breach has been wilful, it is no answer ‘to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order’ ( Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). Thus, if the act or omission that constitutes the breach was done wilfully, the contemnor is now liable to be fined even if the breach was not contumacious.”

81 In Lade & Co. Pty Ltd v Black [2006] 2 Qd R 531 at [57], Keane JA held (omitting citations):

“Under the general law, apart from statute, it was established that ‘contempt lies in disobedience of a court’s order’. References in the authorities to the requirement that conduct be contumacious were concerned with the power to fine a contemnor by way of punishment for a contempt; they were not concerned with establishing whether a contempt had occurred.”

82 These authorities hold that a technical breach of an order is nevertheless a contempt, albeit not deserving of punishment by fine or committal. More recently, it has been said that, “proof that contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional”: Markisic v Commonwealth of Australia [2007] NSWCA 92, (2007) 69 NSWLR 737 at [64] per Campbell JA (Handley AJA and Bell J concurring). It is reasonably clear that his Honour intended to refer to punishable contempt because immediately before making that statement he quoted from Mudginberri and said, “As I read their Honours, their view is that the imposition of punishment is justified for the breach of a court order only if there is wilful disobedience in the sense of deliberate action or inaction that is not casual, accidental or unintentional”.

83 The respondent refers to an obiter suggestion of Cripps J in Tweed Shire Council v Mannix (1983) 50 LGRA 369 at 375 that it is not appropriate to use SCR Pt 55 for a “civil” contempt of disobeying a court order. It seems his Honour thought that the only appropriate course was to enforce the order under the former SCR Pt 42, now UCPR Pt 40. In Owners Strata Plan 37762 v Pham [2007] NSWLEC 252, (2007) 154 LGERA 150 at [38], Pain J disagreed and, with respect, so do I. Disobedience of a court order is a well recognised form of civil contempt, proceedings for civil contempt for disobedience to a court order are legion, and SCR Pt 55 applies to all forms of contempt. Moreover, where, as in the present case, the only penalty sought is a fine, that penalty is only available under SCR Pt 55 and not under UCPR Pt 40.

84 The respondent refers to dicta of Cripps J in Mannix at 375 that if a criminal contempt is alleged, the statement of charge should specify the “contumacious conduct amounting to the commission of a crime committed by the respondent beyond disobedience of the court’s order”. With respect, I have difficulty with that view for two reasons. First, contumacious disobedience – that is, deliberate defiance – of a court order may not involve any identifiable conduct, such as shouting it from the rooftops, but may be a matter of inference from the contemnor’s response to the contempt charge, assessed at trial. Secondly, the weight of authority discussed at [74] - [81] above indicates that contumacy is only relevant to penalty and it is difficult to construe the statement of charge rule as requiring a statement of matters going only to penalty.

85 However, if it is necessary to state in a statement of charge that the disobedience was contumacious at peril of that being excluded from consideration at trial notwithstanding that it emerges at trial that it was contumacious, the consequence is not that the statement of charge is defective, but that any contumacious disobedience cannot be considered on penalty, unless leave is granted to amend the statement of charge at trial. It is irrelevant to whether the respondent is in contempt by breaching the order, as the applicant alleges.

SERVICE

86 The respondent submits that where a criminal contempt is alleged the order must be entered and served but that did not happen: Re Tuck [1906] 1 Ch 692; cited in Miller v Eurovox Pty Ltd [2004] VSCA 211 at [32].

87 I do not accept the submission.

88 Lloyd J’s orders were entered and signed and sealed by the Registrar of the Court on 31 July 2008. Attempts to serve them were unsuccessful.

89 In Re Tuck the English Court of Appeal held that where an order has been made for a person to do an act within a limited time, a writ of attachment will not usually be issued against the person unless the order has been personally served upon him; and that the fact that the order was made by consent and he was in court when it was made, will not make personal service unnecessary unless it was shown that he was evading service.

90 In my view, the practice in England in 1906 is not relevant in New South Wales today because the matter is now governed by the rules of court. Service of an order endorsed with a penal notice is required for enforcement by committal or sequestration: UCPR 40.7. As it happens, that reflects the practice in Re Tuck and it was in the context of such a rule that Re Tuck was cited in a case quoted in Miller v Eurovox at [32]. There is no such requirement for enforcement by punishment by way of a fine for contempt under SCR Pt 55.

91 Of course, an alleged contemnor must know of the order before he can be found guilty of contempt. In the present case, the respondent did know of the order. He was present in Court and represented when the orders were made and during the hearing before Lloyd J. The order took effect when made: UCPR 36.4(1)(a). In my opinion, it was unnecessary for the order to have been served upon him.

VALIDITY OF ORDER

92 The respondent submits that the order was void because it was a purported variation of, or substitution for, the order made by Jagot J which Lloyd J had no power to make: Boddington v British Transport Police [1999] 2 AC 143;; Bailey v Marinoff [1971] HCA 49, (1971) 125 CLR 529 at 530, 532, 536, 539; DJL v The Central Authority [2000] HCA 17, (2000) 201 CLR 226 at [32]; Newmont Yandal Operations Pty Ltd v The J Aron Corporationand the Goldman Sachs Group Inc [2007] NSWCA 195, (2007) 70 NSWLR 411; Hurstville City Council v Jacobs [2007] NSWLEC 630.

93 I reject the submission for two reasons. First, UCPR Pt 36 rr 36.5(1) and 36.16(2)(b) are each a complete answer to the submission. They empowered Lloyd J to make the order. The earlier orders of Jagot J were made in the absence of the respondent whose motion to set aside her Honour’s orders, heard by Lloyd J, were pursuant to r 36.16(2)(b). These rules provide as follows:

“ 36.5 Time for compliance with judgments and orders

(1) If a judgment or order requires a person to do an act within a specified time, the court may, by order, require the person to do the act within another specified time.

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:
…
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order…”

94 Secondly, the submission is based on the false premise that Lloyd J’s order is void if he had no power to make it. There has been no appeal from the order of Lloyd J and it has not been set aside. The Land and Environment Court is a superior court of record: s 5 Land and Environment Court Act 1979. An order of a superior court made in excess of jurisdiction is merely voidable and remains valid and enforceable until set aside. Disobedience to such an order is a contempt: Matthews v Australian Securities and Investments Commission [2000] FCA 288, (2007) 97 FCR 396 at [20].

95 Ironically, the order of Lloyd J now said to be invalid was beneficial to the respondent as it meant that he ceased to be in breach of the demolition order made by Jagot J and had a further four months to comply. If it is invalid, then prima facie he was in contempt of Jagot J’s order.

IMPOSSIBILITY OF PERFORMANCE

96 The respondent submits that the order of Lloyd J was “impossible of performance“ because the time specified for demolition was insufficient to permit demolition by the respondent.

97 The submission is based on evidence in the respondent’s case by a carpenter, Mr Christopher Chilcott, that it would take him 397 days or 19.85 months to demolish the garage.

98 This evidence was rebutted by Mr Glen Briggs, a health and building surveyor employed by the council, who considered that Mr Chilcott’s estimate was a gross overestimate. In Mr Brigg’s opinion, it would take a qualified tradesperson working alone 21 days to demolish the garage utilising power tools and having access to skip bins for removal of waste; it would be more practical for two or three workmen to do the job and that it would take them 10 days; and a demolition company could do it in three days. Mr Briggs has had considerable experience on site observing this sort of work as part of his job. Photographs of the garage are in evidence. I was impressed by Mr Briggs as a witness. I accept his assessment having regard to his familiarity with the garage, his experience and the size of the garage. That conclusion is fortified by the absence of evidence of any attempt by the respondent to demolish the garage, which would have cast light on how long it might take. In addition, a reality check, having regard to the size of the garage, suggests that if Mr Chilcott’s evidence has any credibility, tradespeople generally are far quicker than he is.

99 I therefore do not accept the respondent’s submission.

COMMENCEMENT OF DEMOLITION

100 The respondent submits that there is no evidence that the applicant has failed to commence demolition of the garage. Prima facie, I think, the evidence indicates the contrary. However, it is unnecessary to pass judgment on that contention at the present time because, if it is relevant, it is relevant only to penalty.

CONCLUSION

101 I am satisfied beyond reasonable doubt that the respondent breached the order and is in contempt. The exhibits may be returned.

102 I will proceed to hear the parties on penalty and make the following directions in relation to the penalty hearing:

(1) The applicant is to file and serve its evidence by 3 July 2009.
(2) The respondent is to file and serve his evidence by 17 July 2009.
(3) The applicant is to file and serve any evidence in reply and submissions by 27 July 2009.
(4) The respondent is to file and serve his submissions by 10am on the third last working day before the hearing.
(5) The parties are to proceed within two working days to the Registry to obtain a one day hearing date for the penalty hearing before me in August 2009 if available, otherwise as soon as possible thereafter.

12/10/2009 - typographical correction in [82] substitute "personably" to "reasonably" - Paragraph(s) 82