Porter v Steinberg - [2019] WASC 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PORTER -v- STEINBERG [2019] WASC 291
CORAM:   TOTTLE J
HEARD:   31 JULY 2019
DELIVERED          :   14 AUGUST 2019
FILE NO/S:   CIV 1521 of 2019
BETWEEN:   SAMUEL PORTER
Applicant
AND
JOEL ALEXANDER STEINBERG
First Contemnor
KYLE RONALD HAMS
Second Contemnor

Catchwords:

Contempt - Civil contempt - Failure to comply with order of State Administrative Tribunal - Where deliberate disobedience - Whether conduct contumacious

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 98
State Administrative Tribunal Act 2004 (WA), s 86

Result:

First respondent guilty of contempt
Penalty reserved

Category: B

Representation:

Counsel:

Applicant	:	Ms K A T Pedersen
First Contemnor	:	Mr E John
Second Contemnor	:	No appearance

Solicitors:

Applicant	:	Ms KAT Pedersen
First Contemnor	:	Symons & Co Legal
Second Contemnor	:	No appearance

Case(s) referred to in decision(s):

Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139
Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

TOTTLE J:

Overview

These proceedings arise from a dispute about noise disturbance between the owners of units in a block of units in Bay View Terrace, Claremont. Unit 1 is a ground floor unit owned by the applicant Mr Porter and unit 2 is a first floor unit situated directly above unit 1. Unit 2 is owned by the first and second contemnors Mr Steinberg and Mr Hams respectively.
At a hearing on 31 July 2019 I made an order recording that Mr Steinberg was guilty of contempt of court together with a number of ancillary orders. The orders are reproduced in full at [44]. The contempt was admitted by Mr Steinberg and was constituted by a failure by him to obey an order made by the State Administrative Tribunal on 15 June 2018 (the SAT Order). I did not impose a penalty on Mr Steinberg but adjourned the issue of penalty to a hearing on 13 September 2019 to allow Mr Steinberg to file submissions. Mr Hams did not attend the hearing on 31 July 2019 and the application against him was adjourned to be dealt with on 13 September 2019.
The SAT Order was in the following terms:
By 5 October 2018 [Mr Steinberg and Mr Hams] shall ensure that all floor space within lot 2 on Strata Plan 9002, other than the kitchen, laundry, lavatory and bathroom, is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor, occupier or other resident of lot 1 on Strata Plan 9002.
I publish these reasons to explain why I am satisfied that the allegations of contempt against Mr Steinberg have been established.

The evidence

In support of the allegations made by him Mr Porter relied on three affidavits affirmed by him on 20 February 2019, 10 July 2019 and 30 July 2019 respectively and on an affidavit of Mr George Watts (a senior acoustic consultant) affirmed on 10 July 2019. Mr Steinberg relied on an affidavit sworn by him on 31 July 2019. The contents of Mr Steinberg's affidavit are directed principally to matters of mitigation.
Mr Hams did not appear at the hearing on 31 July 2019. Personal service of the originating motion and supporting affidavits was effected on Mr Hams on 24 June 2019.[1]
[1] Affidavit of Darren Richard Walker sworn on 4 July 2019.

Factual background

The following account of the factual background is derived from Mr Porter's affidavits. Other than to dispute Mr Porter's evidence in respect of a limited number of the many occasions on which Mr Porter says he suffered from noise disturbance Mr Steinberg did not challenge Mr Porter's evidence. Those limited disputes are presently immaterial.
Mr Porter has lived in unit 1 since about September 2014. Mr Steinberg and Mr Hams moved into unit 2 in late 2014 or early 2015.
Before April 2017 the flooring of unit 2 was:
(a)carpet with underlay in the bedrooms and hall areas;
(b)floating timber veneer with underlay in the living, dining, and kitchen areas; and
(c)floating timber veneer with underlay in the north facing room that was originally a balcony but is now enclosed.
Before April 2017 Mr Porter heard occasional faint noises from unit 2. They caused no disruption.
In April 2017 Mr Steinberg and Mr Hams undertook renovations which included:
(a)the removal of all of the existing carpet flooring and the underlay from the bedrooms and hall areas, and its replacement with ceramic tiles;
(b)the removal of all of the existing floating timber veneer flooring and the underlay from the living, dining and kitchen areas, and from the north facing room, and its replacement with ceramic tiles; and
(c)the addition of a shower and toilet in the laundry.
Mr Porter's evidence contains a detailed account of events between the completion of the renovations in unit 2 and the making of the SAT Order. I accept that evidence but it is unnecessary to recite it in detail. For present purposes it may be summarised as follows:
(a)Following the renovations Mr Porter was disturbed frequently by noise emanating from unit 2 that he had not previously experienced.
(b)Attempts to resolve Mr Porter's concerns by direct communication with Mr Steinberg and Mr Hams failed as did attempts to resolve the concerns by taking action through the strata company.
(c)Noise testing was undertaken in February 2018 by Mr George Watts who reported that:
(i)the tests, carried out using impact isolation testing, recorded 75db in the living area of Unit 1 and 76db in the bedroom area of unit 1;
(ii)the noise levels exceeded certain building standards, identified in the report; and
(iii)the results were indicative of either no impact isolation treatment below the floor finish, or a treatment that was inappropriately performing.[2]
Mr Watts expressed a view about how the problem flooring could be remedied, so as to successfully address the 'impact noise for Unit 2'.
(d)Further discussions between the parties did not resolve the problem and on 29 May 2018 Mr Porter made an application to the State Administrative Tribunal for orders under s 83(1) of the Strata Titles Act 1985 (WA).
(e)On 15 June 2018 the SAT Order was made by consent.
[2] In a supplementary report prepared by Mr Watts on 9 July 2019, Mr Watts states that his opinion that the floor finish or treatment was inappropriately performing was based on 'my experience with other testing that I have conducted where a bare concrete slab has provided a similar level of impact isolation and similarly, tiled flooring directly affixed to the slab has provided similar'.
Mr Porter was overseas from 25 July to 3 October 2018. On his return he continued to be disturbed by loud noises from unit 2.
On 18 October 2018, Mr Porter sent a text message to Mr Steinberg referring to the SAT Order stating that there had been no reduction in the level of noise being transmitted from unit 2 to unit 1. Mr Steinberg sent a responsive text message to Mr Porter stating:
Without prejudice. Not sure you are qualified to determine where the noise is coming from. See how it goes over the weekend, then I guess if you're still not will have to get the sound consultant back to do another noise test with the rugs down. I will only consent to the tester entering my apartment if the noise machine is placed on the rugs we bought not on the bare floor, otherwise you will have to get a court order for the test. The SAT didn't actually order me to upgrade the floor it, [sic] I consented to an order to comply with the act [sic] by that date - there was no specific requirement to upgrade just to comply - we can either work together with rugs etc to get the noise to a decent level or you will have to go back to SAT and to prove your case you will have to get another [test] done. I'm not spending $15,000 and moving out of the house to get the floor changed and the builders say there is no proof it is any different from before other then [sic] your say so.
If you want to pay for the floor to be changed you're welcome to but I'm not paying for it unless I'm ordered by a court.
On 3 November 2018, Mr Porter emailed Mr Steinberg and Mr Hams and stated that he wanted to make clear that he was still experiencing unacceptable levels of noise from the living and bedroom areas of Unit 2. Mr Porter asked Mr Steinberg and Mr Hams what they would do to make their floors compliant with the SAT order. Mr Steinberg responded by email on 4 November 2018 and stated that rugs had been placed in unit 2 but not in one of the bedrooms which he referred to in the email as the 'spare room'.
Mr Porter sent a further letter to Mr Steinberg and Mr Hams on 5 November 2018 stating, among other things, that the noise transmission from unit 2 continued to severely and continually impact his peaceful enjoyment of unit 1.
On 8 November 2018 Mr Porter sent an email to Mr Steinberg and Mr Hams asking for permission for an acoustic engineering to undertake testing in unit 2. Mr Steinberg again declined to give that permission and again imposed conditions which included that any testing could only be performed on top of rugs and not on any of the areas of the flooring that remained uncovered.
On 8 December 2018 the strata company gave a notice to Mr Steinberg and Mr Hams pursuant to s 39(2) of the Strata Titles Act that it required entry to unit 2 by its agent to ensure that the by‑laws were being observed.
Mr Steinberg responded by email on 8 December 2018 stating that the strata company could enter but was not entitled to undertake any tests.
On 10 December 2018 the strata company sent a further letter to Mr Steinberg and Mr Hams, stating that some form of testing would be necessary in order to ensure that the noise transmission from unit 2 to unit 1 was not at a level that contravened Schedule 2, by‑law 10 of the Strata Titles Act. The strata company asked Mr Steinberg and Mr Hams to confirm that they would not prevent the company's agent from entering unit 2.
Mr Steinberg responded by email on 11 December 2018 and stated that the strata company was only permitted to test on top of rugs and not on any of the areas of flooring which were uncovered, alternatively, that he would permit testing of the uncovered areas of flooring in unit 2 if testing was also undertaken in another apartment.
On 12 December 2018 the strata company sent a further letter in which it stated that it was entitled to ensure that the whole of the relevant floor space in unit 2 complied with the by‑laws and that Mr Steinberg and Mr Hams could not impose conditions of the kind they sought to impose. In response, Mr Steinberg stated that his 'previous email' stood. No testing to ensure the compliance of the flooring in unit 2 was undertaken.
In December 2018 the ongoing noise from unit 2 was causing Mr Porter significant anxiety. 20 months had passed since the ceramic floors were installed in unit 2. Mr Porter was tired from being woken and kept awake by noises from unit 2. The long period of intrusion and disturbances from the noise was beginning to wear him down. From 8 December 2018 to 13 December 2018 and from 15 December 2018 to 31 December 2018 Mr Porter slept at a friend's house in Claremont which allowed him the opportunity to rest and to overcome his anxiety.
On 10 January 2019 in anticipation of a directions hearing in the State Administrative Tribunal Mr Steinberg sent an email to the member with carriage of the matter and stated:
As the applicant is unrepresented without legal training, it may be he feels that the matter will be heard tomorrow in full if you could please suggest to the applicant, the process by which a decision is made and that evidence will need to be produced if he still claims that I have not complied with the consent order.
The applicant may attempt apply [sic] to the Tribunal tomorrow, for an order that he gain access to my apartment for the purposes of sound testing, I do not consent to this application. The order was that floor coverings be placed in accordance with the Strata Titles ACT [sic], the orders made no specific compliance with any level of sound be adhered to.
As such I will consent to an order that the Applicant be allowed entry to my apartment for the purposes of inspecting the floor coverings placed but not for any other purpose.
The noise disturbance continued and in March 2019 Mr Porter engaged a lawyer, Ms Pedersen, to assist him. He tried again to persuade Mr Steinberg and Mr Hams to comply with the SAT Order without the need for enforcement proceedings. On 20 March 2019 Mr Porter emailed Mr Steinberg and Mr Hams. In that email Mr Porter described the nature of the noise that he was hearing, and stated that:
(a)the level of noise was intolerable for him;
(b)he had engaged Ms Pedersen and attached a copy of a notice of originating motion that Ms Pedersen had prepared;
(c)the commencement of enforcement proceedings was not a step that he took lightly but he had no choice and explained why that was so; and
(d)if Mr Steinberg and Mr Hams were willing to take immediate steps to comply with the SAT Order then they should notify him by 22 March 2019.
Mr Steinberg responded on 21 March 2019 and stated that he would allow a test of his floorings and that he would arrange it if Mr Porter could not. A test of the floors was never arranged.
On 25 March 2019, Mr Porter filed the originating motion by which the present application was brought.
On 27 March 2019, Mr Steinberg emailed Mr Porter and Ms Pedersen and stated that: he had covered some of the floor space the subject of the SAT Order and that he proposed to purchase further soft coverings 'to further cover and treat the area ordered to be covered, including the spare bedroom'; it would be costly for him to replace the flooring; and he proposed that further sound testing be undertaken and if the flooring did not comply, then he would 'execute a written undertaking to have the floors replaced within 3 months'. Mr Steinberg did not contact Mr Porter about undertaking the noise testing referred to in his email dated 27 March 2019.
On 2 April 2019, Ms Pedersen emailed Mr Steinberg and Mr Hams. On 3 April, Mr Hams responded and indicated that he had not been living at unit 2 for 'some time'; he was under the impression that Mr Steinberg had rectified the problems; and he would not be able to attend court as he was moving interstate.
Mr Porter continued to maintain a log of many of the noises which originated from unit 2 between 20 March 2019 and 6 July 2019 and noted that the types and volume of noises that he heard in that period were about the same as the types and volume of noises he had heard since April 2017 when the ceramic tile flooring was installed. Mr Porter noted that such sounds include sharp, loud noises of hard items hitting the ceramic flooring, thudding noises, footsteps, voices, coughing, chairs or other furniture being moved on the floor and urination in the toilet.

The relevant statutory provisions

Section 86 of the State Administrative Tribunal Act 2004 (WA) is as follows:
(1)If, or to the extent that, a decision of the Tribunal is not a monetary order, it may be enforced under this section.
(2)A person seeking to enforce a decision under this section may file in the Supreme Court —
(a)a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and
(b)the person’s affidavit as to the non-compliance with the decision; and
(c)a certificate from a judicial member stating that the decision is appropriate for filing in the Supreme Court.
(3)No charge is to be made for filing a copy of a decision, an affidavit, or a certificate under this section.
(4)On filing, the decision is taken to be a decision of the Supreme Court, and may be enforced accordingly.
By 28 March 2019 Mr Porter had filed the documents listed in s 86(2) and, as such, the SAT Order is taken to be an order of this court.
Division 2 of pt 5 of the Civil Judgments Enforcement Act 2004 (WA) applies if a judgment requires or has the effect of requiring a person to not do an act, to cease doing an act, or to do an act other than to pay money or to give possession of any real or personal property to another person.[3]
[3] Civil Judgments Enforcement Act 2004 (WA) s 97.
'Judgment' is defined in s 3 of the Civil Judgments Enforcement Act to include an order of a court that requires or has the effect of requiring a person to do an act, or not do an act, or cease doing an act. Accordingly, the SAT Order is a judgment for the purposes of div 2 of pt 5 of the Civil Judgments Enforcement Act.
Section 98 of the Civil Judgments Enforcement Act states:
(1)If a natural person disobeys a judgment to which this Division applies the person is guilty of a contempt of court.
…
(4)A person entitled to the benefit of a judgment to which this Division applies may request the court to deal with a natural person, partner, corporation or officer guilty of a contempt under this section for the contempt.

Contempt - the legal principles

The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice.[4]
[4] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [24] (Beech J).
The requirements for proof of a punishable contempt of court are as follows:
(i)an order was made by the court;
(ii)the terms of the order were clear, unambiguous and capable of compliance;
(iii)the order was served on the contemnor or service was dispensed with;
(iv)the contemnor has knowledge of the terms of the order;
(v)the contemnor has breached the terms of the order; and
(vi)the act or omission which constituted the breach of the order was deliberate and voluntary.[5]
[5] Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139 [19] - [21], [86] - [88] (Mitchell J, as his Honour then was).
Deliberate disobedience of an order does not require a specific intention to break the law or even knowledge on the part of the contemnor that the relevant conduct constituted a breach. It is sufficient that the contemnor was aware of the facts that make their conduct a breach of the order. In the context of contempt, 'deliberate' means wilful in the sense that the actions of the contemnor were not casual, accidental or unintentional.[6]
[6] Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315 [8] (Martin CJ); cf Caratti [82] - [84].
Disobedience of a court order constitutes a civil contempt although where the disobedience involves deliberate defiance, that is, where the disobedience can be described as contumacious, it may constitute a criminal contempt. The distinction between criminal and civil contempt is, however, blurred and has been described as illusory.[7]
[7] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ), cited with approval in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [42] (French CJ, Kiefel, Bell, Gageler and Keane JJ), [66] (Nettle J). The distinction was described as being of an 'unsatisfactory nature' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson and Deane JJ).

The contempt was contumacious

In his affidavit sworn on 31 July 2019 Mr Steinberg deposed as follows:
5Between 15 June 2018 and the date of this affidavit, I had verily believed, based upon my limited legal knowledge, that laying down rugs and floor runners throughout my apartment was sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the applicant and I verily believed this was all that was required by the order made by the State Administrative Tribunal on 15 June 2018 (the Order).
6Between 15 June 2018 and February 2019, I had placed a total of eight rugs and floor-runners throughout my apartment in line with my belief. A true copy of a bundle of photographs taken of my apartment is a next to the affidavit and marked "JS-1".
7Having now received the benefit of advice from my lawyer, I have become aware that my previously held belief was both legally and factually incorrect due to the fact that the Order referred to "all floor space".
8I am deeply sorry that my mistaken belief resulted in prolonged disturbance to the Applicant's peaceful enjoyment of his property.
The photographs annexed to Mr Steinberg's affidavit depicted rugs and floor‑rollers on the floor of unit 2 but they also showed that large areas of the floor space were not covered.
The terms of the SAT Order were clear - it required the floor space in unit 2 (with the exception of the kitchen, laundry lavatory and bathroom floor space) to be covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of Mr Porter. Mr Porter's evidence establishes that Mr Steinberg works for a firm of lawyers and obtained a law degree in 2015 and a Graduate Diploma in Legal Practice in 2016. I do not accept that Mr Steinberg was under any misapprehension of what the SAT Order required. Nor do I accept that Mr Steinberg believed that the steps he had taken to lay down rugs and floor‑runners in unit 2 were sufficient to prevent the transmission of noise from unit 2 to unit 1 that would disturb Mr Porter's peaceful enjoyment of unit 1.
The complaints made by Mr Porter from October 2018 onwards about noise disturbance could have left Mr Steinberg in no doubt that the steps he had taken to reduce the transmission of noise from unit 2 were manifestly inadequate. He had neither covered the floor space in question nor otherwise treated it to the extent sufficient to prevent the transmission of disturbing noise from unit 2 to unit 1. I infer from the sequence of events from October 2018 onwards that Mr Steinberg did not intend to take any further step to comply with the SAT Order unless compelled by enforcement action to do so. I find that Mr Steinberg's disobedience to the SAT Order was not only wilful but defiantly so and as such was contumacious.

Orders made

The orders made by me on 31 July 2019 were as follows:
1[Mr Steinberg] is guilty of contempt by reason of his failure to comply with the SAT Order.
2It is declared that [Mr Steinberg] did not comply with the SAT Order in the period from 5 October 2018 until at least 30 July 2019, and that during that period and as at 30 July 2019, the flooring of Lot 2 on Strata Plan 9002 remained non-compliant.
3[Mr Steinberg] is directed forthwith to undertake the rectification work necessary to comply with the SAT Order and to ensure that the impact isolation provided by the flooring of Lot 2 on Strata Plan 9002 produces a noise level of no more than 55dB in Lot 1 on Strata Plan 9002.
4On completion of the rectification work [Mr Steinberg] is directed to engage, at his own expense, Mr George Watts or another suitably qualified expert from Herring Storer Acoustics to undertake testing and certification of the level of impact isolation provided by the flooring of Lot 2 on Strata Plan 9002, and to provide to [Mr Porter] and to the court certification showing the level of impact isolation produces a noise level of no more than 55dB.
Mr Porter had sought an order that a daily fine of $100 be imposed on Mr Steinberg until he complied with the SAT Order. I was informed from the bar table by Mr Steinberg's counsel that Mr Steinberg was confident that the necessary remedial work could be undertaken by the end of August and that Mr Steinberg was prepared to give an undertaking that, apart from a short period, he would not live in unit 2 until the work had been undertaken. The orders made above were made on the basis that Mr Steinberg undertook to the court that he would not reside in unit 2 between 1 and 8 August and 12 and 30 August 2019. In those circumstances I declined to make an order for a daily fine as sought by Mr Porter.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle
14 AUGUST 2019