Sader v Elgammal (No 2)

[2023] NSWLEC 92

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sader v Elgammal (No 2) [2023] NSWLEC 92

Hearing dates:

04 September 2023

Date of orders:

08 September 2023

Decision date:

08 September 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

The Court orders:

(1) The Applicants’ notice of motion dated 25 July 2023 is dismissed.

(2) Costs reserved.

Catchwords:

PROCEDURE – order for access for expert to obtain evidence on neighbour’s land in contempt proceedings refused – whether application of privilege against self-exposure to penalty applies.

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Crown Land Management Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) s 121B

Evidence Act 1995 (NSW) ss 138, 169

Trade Practices Act 1974 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 31.19

Cases Cited:

Alpha Energy Pty Ltd v Violi [2010] FCA 1210

City of Sydney v Li [2012] NSWLEC 156

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375

Council of theCity of Sydney v Li [2012] NSWLEC 156

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002

Malass v Strathfield Municipal Council [2022] NSWLEC 116

Master Builders Association (NSW) v Plumbers & Gasfitters Employees' Union of Australia (No 2) (1987) 14 FCR 479

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046

Naismith v McGovern (1953) 90 CLR 336

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328

R v Associated Northern Collieries (1910) 11 CLR 738

Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204

Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80

Sader v Elgammal [2022] NSWLEC 107

Sutherland Shire Council v Perdikaris [2020] NSWLEC 111

Television Broadcasts Ltd v Choi Wan Cheung T/A ABM Video [1998] FCA 1318

Trade Practices Commission v AbbcoIceworks Pty Ltd (1994) 52 FCR 96

Category:

Procedural rulings

Parties:

Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammoud (Second Respondent) (not applicable)
The State of New South Wales (Third Respondent) (not applicable)

Representation:

Counsel:
J Farrell (Applicants)
P Lange (First Respondent)

Solicitors:
Davidson Legal Consulting Advisory (Applicants)
One Group Legal (First Respondent)

File Number(s):

2022/36734-015

JUDGMENT

1. In Sader v Elgammal [2022] NSWLEC 107 Duggan J found that the First Respondent Mr Elgammal had unlawfully constructed two concrete slabs on his property and demolition of those concrete slabs was ultimately ordered. The Applicants Mr and Mrs Sader have brought contempt proceedings against the First Respondent for failure to comply with the orders made by the Court on 30 September 2022. The First Respondent’s property is located on the foreshore of the Georges River at Bowden Crescent Connells Point (the Property). The Applicants own neighbouring land to the immediate south-west of the Property.

2. By notice of motion dated 25 July 2023 the Applicants seek an order for access to the Property of the First Respondent for an expert engineer to inspect whether two concrete slabs have been demolished. The First Respondent opposes the application for an access order. The Applicants seek the orders extracted below:

The Court orders:

Notice of Motion – 25 July 2023

1. Pursuant to rule 23.8 of the Uniform Civil Procedure Rules 2005, the representatives of the Applicants referred to in order 3 are permitted to access, on 5 days’ notice and in any event by no later than 11 September 2023, the land identified as Lot 13 DP 14844 being 26 Bowden Crescent, Connells Point, New South Wales (Property) for the purposes of an inspection of the Property, the making of observations of and in relation to the Property, the carrying out of tests to determine:

•    the presence of;

•   the extent of removal, if any;

of structures the subject of order 4 of Her Honour Justice Duggan dated 30 September 2023 (Orders), and the taking of photographs.

2. Pursuant to rule 23.8(2) of the UCPR, the persons referred to in order 3 may remove any soil or other materials located on the structures the subject of the Orders so as to the permit clear access to those structures.

3.   The persons authorised to enter the Property are:

•   Mr Mark Manning, Structural Engineer; [and]

4.   The Court notes the undertaking of the Applicants that they will:

•   ensure that the persons referred to in Order 3 will comply with appropriate social distancing measures to minimise the risk of spread of COVID-19 and any other occupational health and safety requirements;

•   not permit any person showing symptoms of COVID-19 to access the Property (for example coughing or a temperature above 37 degrees Celsius);

•   ensure that all persons wear a mask whilst on the Property; and

•   ensure that all persons undertake appropriate sanitisation before and after entering the Property.

3. At issue is whether the Court should make the orders sought pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

4. The following order was also sought in the contempt proceedings:

6.    The Applicants must file and serve their evidence in reply within 14 days of the date of the inspection referred to in order 1 and by no later than 20 September 2023. For the purposes of this order, the Applicants are granted leave to rely upon a report of Mr Manning as to the presence of, and the extent of removal of structures the subject of order 4 of Her Honour Justice Duggan dated 30 September 2022.

Primary proceedings

5. The orders made on 30 September 2023 (final orders) are relevantly extracted below:

6. …

4 The Court orders that, within six months of the earlier of the date of these orders or the date upon which an occupation certificate in respect of the works constructed pursuant to Development Consent DA 2020/0430 granted on 7 October 2021 by the Georges River Council (DC) is issued (Occupation Certificate), the First Respondent must demolish:

a. The concrete slab and the low concrete wall between the mean high water mark and the approved dwelling house on the north-east corner of the site being. Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point NSW (the Site) adjacent to 28 Bowden Crescent, Connells Point (Northern Slab); and

b. The concrete slab constructed on the south-west corner of the Site adjacent to 24 Bowden Crescent, Connells Point (Southern Slab)

and referred to In the Judgment.

5 In the event that, within six months of the date of these orders or the date upon which an Occupation Certificate is obtained, the First Respondent obtains a building information certificate pursuant to s 6.25 of the Environmental Planning and Assessment Act 1979 in relation to the portion of low concrete wall adjacent to the Northern Slab, and referred to in order 4(a), circled ln red and blue on Attachment A to these orders, demolition of that portion of the wall is not required.

6 The Court orders that the First Respondent be restrained from placing any building or construction materials or plant or machinery upon either of the Northern Slab-or Southern Slab whilst they remain on the Site.

…

10 The First Respondent has liberty to apply to extend the time for compliance with these orders.

7. On 21 March 2023 the First Respondent applied to extend the time to comply with order 5 as provided for in order 10. On 27 April 2023 Duggan J made orders extending the time to comply with order 5 from six months to twelve months.

Contempt proceedings

8. On 13 April 2023 the Applicants filed a notice of motion for contempt charging the First Respondent with breaching orders 4(a), 4(b) and 6 of the final orders made by Duggan J on 30 September 2022. The First Respondent entered pleas of not guilty to the three charges on 19 May 2023. Timetable orders were made for the preparation of the hearing on 19 May 2023. The contempt proceedings are listed for hearing on 5 and 6 October 2023.

9. According to the First Respondent the matters for determination in the contempt proceedings include whether:

1. The Northern Slab (as defined in the final orders) was demolished by 30 March 2023, having regard to the Extension Application and relevant orders;

2. The Southern Slab (as defined in the final orders) was demolished by 30 March 2023; and

3. Construction materials were placed on the Northern and Southern Slab between 31 March 2023 and 11 April 2023.

Uniform Civil Procedures Rules 2005 (NSW)

10. The UCPR relevantly provides as follows:

Part 23 Medical examinations and inspection of property

…

Division 3 Inspection of property

23.8 Inspection of property (cf SCR Part 25, rule 8; DCR Part 23, rule 9; LCR Part 20, rule 8)

(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following—

(a) the inspection of any property,

(b) the taking of samples of any property,

(c) the making of any observation of any property,

(d) the trying of any experiment on or with any property,

(e) the observation of any process.

(2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection).

(6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.

…

Part 31 Evidence

…

Division 2 Provisions applicable to expert evidence generally

…

Subdivision 2 Expert witnesses generally

31.19 Parties to seek directions before calling expert witnesses

(1) Any party—

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial—

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

…

11. Under r 23.8(4) of the UCPR the Court is not to make an order for the inspection of property unless it is satisfied that sufficient relief is not available under s 169 of the Evidence Act 1995 (NSW). The parties agree relief is not available under s 169.

Evidence

12. The First Applicant Mr Sader swore an affidavit dated 24 July 2023 in support of the notice of motion for access. The First Applicant annexed the following correspondence between the Applicants’ and First Respondent’s legal representatives to his affidavit.

1. On 14 July 2023 Davidson Legal Consulting Advisory sent a letter to One Group Legal. The letter stated photographs attached to the letter clearly demonstrated that the Northern Slab and a portion of the Southern Slab remained in situ. The letter stated that an inspection of the structures the subject the final orders could verify the First Respondent’s affidavit evidence dated 11 July 2023. The letter stated if necessary the Applicants would seek orders for such an inspection from the Court.

2. On 20 July 2023 Davidson Legal Consulting Advisory sent a further letter to One Group Legal. The letter requested that the First Respondent provide dates and times for an inspection of the structures the subject of the final orders by the Applicants’ structural engineer Mr Manning. The letter stated that the Applicants would make an application to the Court for orders for access to the Property for an inspection if the First Respondent objected to the request. The letter noted that material had been placed on the concrete slabs and partially obscured them. The letter stated that the Applicants viewed an inspection as an efficient means of determining whether the First Respondent complied with the final orders and was consistent with the parties’ obligations to conduct proceedings in a just, quick and cheap manner.

3. On 21 July 2023 Davidson Legal Consulting Advisory received an email from One Group Legal. The email stated:

Our client does not agree with the proposal in your letter of 20 July 2023, and will not consent to granting access to your client or their agent to inspect our client’s property.

13. During the hearing of the notice of motion for access the Applicants read the following lay affidavits filed in the contempt proceedings:

1. The First Applicant sworn 12 April 2023; and

2. The First Respondent sworn 11 July 2023.

14. In the affidavit of the First Applicant sworn 12 April 2023 he deposed that the Northern Slab had not been demolished and was in the same state that it was in on 30 September 2022. He deposed that concrete was removed from a portion of the Southern Slab between 20 March 2023 and 30 March 2023. The Southern Slab remained partially in situ with a large rectangular part of the slab not demolished and all the reinforcement of the slab in situ. He deposed a section of the concrete slab cantilevers over and extends beyond the excavated rock. The dowels had not been cut flush and treated with an epoxy substance. The First Applicant annexed photographs to the affidavit including two photographs that he described depicted the partial demolition of the Southern Slab and the Northern Slab remaining in situ. On 31 March 2023 he observed that soil and debris were placed on top of the Northern Slab. He observed that on 6 April 2023 gravel and other materials were placed on top of the Southern Slab.

15. In the affidavit of the First Respondent sworn 11 July 2023 in the contempt proceedings he deposed that the demolition of the Northern Slab commenced on 20 March 2023 and was completed by 21 March 2023. The Northern Slab and a low concrete wall were poured in the same concrete formwork. The low concrete wall did not require demolition if a Building Information Certificate (BIC) was obtained in relation to the wall. As of 11 July 2023 the BIC was undetermined by the Council. It was necessary to “slice” the concrete so that the footing of the low concrete wall remained in situ and stable. His building labourers then jackhammered the concrete Northern Slab. He attached photographs he described as showing labourers slicing and jackhammering the concrete on 20 and 21 March 2023. As of 30 March 2023 some of the concrete rubble had been moved to another area on the Property in readiness for waste removal and the area had topsoil applied to level off the ground level for site safety reasons.

16. He deposed that demolition of the Southern Slab commenced on about 20 and 21 March 2023. A photograph was annexed to the affidavit that he stated depicted three labourers jackhammering the Southern Slab and one labourer ‘slicing’ the western most cantilevered portion of the Southern Slab to ensure that it could be safely removed without damaging the rock underneath. He deposed the eastern part of the Southern Slab was jack hammered off and was completely removed from the rock base. As of 28 March 2023 he deposed the eastern portion of the slab had been removed with some rio bar remaining in place. Jackhammering commenced on the western portion of the Southern Slab on 28 March 2023. Given the impending date of 30 March 2023, he deposed that he focussed on ensuring that the concrete was demolished by the jackhammer such that it no longer comprised a ‘slab.’ He intended to remove the waste as soon as he was able to. He attached a photograph taken on 28 March 2023 that he described showing the rio bar where the eastern most component of the slab was removed and a labourer jackhammering the western portion so that it was not a slab in compliance with the final orders. In his opinion the photographs attached to the First Applicant’s affidavit of 12 April 2023 show that the Southern Slab was demolished as it was destroyed prior to 30 March 2023. By 6 April 2023 the concrete waste of the Southern Slab was removed from the Property. He attached a photograph that he stated showed there is no longer any concrete in the location of the previous Southern Slab.

17. He deposed the photographs annexed to the affidavit of the First Applicant dated 12 April 2023 show the footing of the low concrete wall adjacent to the Northern Slab. One photograph of the First Respondent showed that the northern return to the low concrete wall had been demolished as of 31 March 2023. The First Respondent also deposed that he did not consent to the First Applicant accessing land he had an exclusive licence for under the Crown Land Management Act 2016 (NSW). He also had not provided permission for the First Applicant to fly a drone over the Property to take photographs.

Applicants’ submissions

18. The Court has power to grant access to land under r 23.8 of the UCPR. For the purposes of r 23.8(1), the ‘matter in question in the proceedings’ is whether and to what extent the Northern and Southern Slabs have been demolished and removed. Order 1 is expressly for the ‘inspection of’ the Property, and the ‘making of observations’ for this purpose. The order is not being made against the First Respondent personally as it is seeking access to land. Order 2 seeks to ensure that unobstructed access to the slabs is given. Such an order is within the scope of r 23.8(1) because it is effectively an order for the inspection of property. For the purposes of r 23.8(3), the registered proprietor of the Property is Mr Elgammal. His solicitors have been served with a copy of the notice of motion for access.

Resolution of factual dispute

19. The Applicants contend there is a factual dispute arising from rival lay evidence set out above in [13]-[16] as to whether and to what extent the Southern Slab and Northern Slab have been demolished. The First Applicant deposed that the Northern Slab had not been demolished and the Southern Slab had only been partially demolished. The First Respondent deposed the concrete slabs were demolished. The evidence of the First Respondent suggests that the lawfulness of the First Applicant’s photographic evidence may be challenged in the contempt proceedings.

20. The controversy as to the demolition of the slabs is likely to be quelled by inspection of the Property by an expert with a paramount duty to the Court. It may avoid the need for further evidence or a view by the Court. The interest of justice favours the orders sought as the orders sought are likely to conclusively determine the state and extent of demolition and otherwise relieve the Court of the burden of determining those issues on contested evidence.

21. The Applicants submitted this matter is on all fours with Malass v Strathfield Municipal Council [2022] NSWLEC 116 (Malass) at [34] and [37] made in the context of contempt proceedings. Orders were made under r 23.8 of the UCPR in Council of theCity of Sydney v Li [2012] NSWLEC 156 (Li) and Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 that were not in the context of contempt proceedings.

22. The Applicants could not anticipate when the contempt proceedings commenced the nature of the defence that may be mounted. For example, that a technical defence relying on the approval of construction certificate and landscape plan may have been made.

23. The Applicants submitted they are not a regulatory authority who can ensure access over the land. The Applicants should be able to test the extent the final orders have been complied with. The expert may find following the inspection the final orders have been complied with and the Applicants can withdraw the contempt proceedings.

19. In reply to the First Respondent’s submission on the right to privacy, the Applicants submitted that the Property is a development site where no one presently resides.

20. In reply to the First Respondent’s submission on impacts to the timetable for the contempt proceedings, the Applicants sought the hearing of this notice of motion for access to be heard as soon as possible. The First Respondent had asked the hearing on the notice of motion for access to be scheduled at the end of September 2023. The First Respondent’s claims that making the orders sought will have an impact on the timetable is inconsistent with the hearing dates the First Respondent initially sought.

21. In reply to the First Respondent’s submission on the application to extend the period of time to obtain a BIC application in accordance with order 5 of the final orders, the BIC Application will only permit the retention of the low concrete wall (see above in [5]).

Access has been sought and rejected

27. The Applicants sought access to the Property and were rejected. The Applicants sent a letter on 20 July 2023 set out above in [11(2)] requesting the First Respondent grant Mr Manning access to the Property and foreshadowed an application being made to the Court if access was denied. The First Respondent did not consent to granting access to the Property in an email dated 21 July 2023 (see above in [11(3)]). The Applicants submitted the Court would observe that no reason was given for the denial of access and that Mr Manning is neither the solicitor’s client, nor his agent. He would be retained as an expert witness with a paramount duty to the Court under the expert witness code of conduct.

28. The First Respondent’s resistance to the motion is unexplained, is without evidence, and is contrary to the interest of justice and the just, quick and cheap resolution of the real issues in the proceedings pursuant to the Civil Procedure Act 2005 (NSW).

Leave for expert evidence sought

29. Mr Manning is well known to the Court being the structural engineering expert retained by the Applicants in the primary proceedings. The Applicants now seek leave to rely on expert evidence under r 31.19 of the UCPR. The timetable orders of the Court of 19 May 2023 contemplate evidence in reply. The Applicants have made clear that they were seeking to rely on expert evidence since 25 July 2023 when the notice of motion was filed and at the first return date of the motion. The orders sought have been varied to formally grant leave for the Applicants to rely on expert evidence (see above in [4]).

Privilege against self-exposure to penalty cannot be relied on

30. In reply to the First Respondent’s submissions on self-exposure to penalty, the Applicants are not seeking the First Respondent disclose documents or supply evidence out of his own mouth. The application is made in relation to land not the First Respondent. The First Respondent may choose not to be present or may choose to be present and say nothing at the inspection. Discovery is dealt with separately under the UCPR. There is no statutory provision that links the privilege against self-exposure to penalty to r 23.8 of the UCPR. No authority allows the Court to say an application of this nature would trigger the privilege against self-exposure to penalty.

31. The Applicants also noted the late filing of the First Respondent’s submissions on 3 September 2023 has given the Applicants less opportunity to prepare a response on the First Respondent’s submissions on self-exposure to penalty. The Applicants relied on Sorby v Commonwealth (1983) 152 CLR 281 (Sorby) at 292, 297 that dealt with the privilege against self-incrimination. The privilege against self-incrimination only applies when a question is asked of a witness. No question is being put to the First Respondent. Sorby distinguished between the statements and other communications of the witness and real or physical evidence provided by the witness. The Applicants submitted the characteristics of the Property and extent of demolition related to real and physical evidence and was not a question triggering the privilege against self-incrimination.

First Respondent’s submissions

32. The First Respondent submitted that written submissions were filed on 3 September 2023 as different counsel was needed for the notice of motion for access hearing as the counsel briefed in the contempt proceedings was unavailable. Counsel in this notice of motion for access hearing was only able to review and finalise written submissions from 1 September 2023.

Orders sought should not be granted

33. The First Respondent submitted that the Applicants have not demonstrated that the Court should exercise its discretion to grant the Applicants’ expert access to the Property pursuant to r 23.8 of the UCPR. A factual dispute is not a sufficient basis for an order under r 23.8 of the UCPR.

34. Any order made granting access would be at odds with the First Respondent’s common law right to privacy. The Applicants and First Respondent are private citizens and the Applicants are not acting in conjunction with any authority or regulatory body. The Property is to be the private residence of the First Respondent and his family. The First Respondent has an overarching right to the quiet and peaceful enjoyment as well as privacy of the Property. It is submitted that this is a factor which weighs against the making of the orders sought.

35. The Applicants have the onus to prove the charges beyond reasonable doubt. Contempt proceedings are serious and have serious implications and outcomes for the First Respondent. This has a significant impact upon whether the discretion ought to be exercised in favour of the Applicants.

36. Prior to commencing the contempt proceedings the Applicants were on notice of the application to extend the period to obtain a BIC application in accordance with order 5 of the final orders and the implications of the extension on compliance with order 4(a) of the final orders. The Applicants had the capacity to consider the evidence filed on in that application including drawings of the retaining wall annexed to the Northern Slab and presumably turned their minds to determining whether they can demonstrate a breach of the final orders in the circumstances.

37. There is no evidence that the Applicants’ expert cannot simply have regard to the photographic evidence apparently secured by the Applicants. There is also no reason as to why a physical inspection of the Property is required when the Applicants have available photographic evidence. If the Court were to grant the Applicants’ application and grant leave to rely on expert evidence, the First Respondent would wish to engage a qualified expert to provide a counter report.

38. It was only subsequent upon the First Respondent filing his evidence in the contempt proceedings that the Applicants brought the notice of motion for access. It is clear from the Applicants’ submissions that the intention to bring this notice of motion for access was presumably to rectify the deficiencies in their evidence and to bolster their case, as well as possibly avoiding an argument pursuant to s 138 of the Evidence Act. None of these purposes is in the interest of justice nor the just, quick and cheap resolution of the proceedings.

39. The First Respondent submitted the existence of a defence does not support making access orders in reply to the Applicants’ submissions that he may have a technical defence.

First Respondent can rely on privilege against self-exposure to penalty

40. The privilege against self-exposure to penalty (rather than self-incrimination) is relied on by the First Respondent. In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 (CFMEU), the High Court confirmed the availability of discovery in civil contempt proceedings. However, Nettle J described the bounds of discovery in contempt proceedings. His Honour held at 392 [54]-[55] and 396-97 [66]-[67]):

[54] It is as well to start with the privilege against self-incrimination and the privilege against self-exposure to penalty. The privilege against self-incrimination had its beginnings in the same aversion to inquisitorial proceedings as spawned the fundamental principle and, in its application to the criminal justice system, it provides support for the fundamental principle. But it has features which set it apart. Importantly for present purposes, it is capable of applying to all proceedings, criminal and civil.

[55] The privilege against self-exposure to penalty affords similar protection to the privilege against self-incrimination, but it developed in Chancery from the equitable precept that it would be “monstrous” for a common informer to be able to bring a civil action for penalty without evidence to support it and then require the defendant to supply the evidence out of his own mouth.

…

[66] … The relief which is sought is thus punitive, not coercive or remedial; and, therefore, the proceeding is a penal proceeding. Even so, it is a civil proceeding. It is tried by judge alone and, subject to the qualification explained below, the applicable rules of procedure are the rules of procedure which apply to other civil proceedings.

[67] The qualification is that some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt; including, in the case of a defendant who is a natural person, the privilege against self-incrimination and the privilege against self-exposure to penalty. Their application rests on “accepted notions of elementary justice” and reflects the fact that a proceeding for committal may result in “very serious interference with the liberty of the subject”. But they do not prevent CFMEU being ordered to make discovery and give production of particular documents.

41. The qualification at [67] has been cited with approval by the Supreme Court and Court of Appeal: Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002 (Kostov) at 1007 [18] and Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 (Mirus) at [120] per Ward CJ in Eq (as Her Honour then was).

42. The origin of the privilege against self-exposure to penalty was discussed by the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (Daniels) at 559 [31] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, quoting with approval Naismith v McGovern (1953) 90 CLR 336 (Naismith) at 341-42 per Williams, Webb, Kitto and Taylor JJ. The High Court in Naismith stated that the privilege against self-exposure to penalties serves the purpose of ensuring those who allege criminality and other illegal conduct should prove it. In support of this proposition, the High Court referred to the decision of Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 (Trade Practices Commission) at 129 per Burchett J, quoting with approval Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 532.

43. The practical effect of privilege against self-exposure to penalty was described by the High Court in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 (Pyneboard) at 335-336 per Mason ACJ, Wilson and Dawson JJ, referring to Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204 (Refrigerated Express Lines). Deane J in Refrigerated Express Lines at 207 observed “It is a well-established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty.”

44. The Federal Court in Master Builders Association (NSW) v Plumbers & Gasfitters Employees’ Union of Australia (No 2) (1987) 14 FCR 479 at 483 per Gray J referred to the well-established authorities that a Court will decline to order the making of discovery of documents or to allow the process of interrogation in actions brought to recover penalties.

45. In Television Broadcasts Ltd v Choi Wan Cheung T/A ABM Video [1998] FCA 1318 (Television Broadcasts) Lindgren J stated it would be inappropriate for the first respondent to produce documents pending ascertainment of what evidence, if any, formed part of the first respondent’s evidence on the hearing of the contempt motion and pending a decision whether the applicants would be entitled to compel her to produce documents to assist them in testing that evidence. The reasoning in Television Broadcasts was quoted with approval in Alpha Energy Pty Ltd v Violi [2010] FCA 1210 at [45]. The principles of self-exposure to penalty apply to proceedings for contempt: Television Broadcasts.

46. The Applicants have made plain that access is sought to clear the factual controversy as to whether and to what extent the Southern Slab and Northern Slab have been demolished. The First Respondent submitted that given the obligation of one party seeking an order that another party be held in contempt of court to prove its case, it is inappropriate that the Applicants may be entitled to rely upon material which may not even become evidence in the case in order to seek an order to inspect property.

47. The cases of Li and Malass are distinguishable from this matter. A plea of guilty was entered in Malass and accordingly the order for inspection did not add to the defendant’s jeopardy or expose the defendant to an additional period of prosecution. In Li the respondent was served with an order for access by the Council under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) and the respondent had not complied. The order was not made in the context of proceedings for a penalty rather the Council was seeking a declaration as to the use of the premises.

48. Contrary to the privilege against self-exposure to penalty, the Applicants seek to require the First Respondent to do something which may expose him to a finding of contempt and an associated penalty. The Applicants seek to enlist the First Respondent for that purpose as he is the person who would be required to ‘permit access’ to the Property. Discovery should not be used to enlist the assistance of the person who is defending the proceedings.

49. In reply to the Applicants relying on Sorby, the First Respondent relies on Sorby at 318-319 in which Brennan J reaffirmed the view in R v Associated Northern Collieries (1910) 11 CLR 738 that the privilege against self-incrimination has long qualified the equitable obligation of a party to give discovery whether in proceedings to recover a penalty or in other civil proceedings.

No leave granted for expert evidence

50. The relief should not be granted in light of the procedural history of the matter. On 19 May 2023 directions were made for the filing of evidence by the First Respondent. No directions were sought in respect of expert evidence contrary to r 31.19 of the UCPR and the Class 4 proceedings practice note at par 16.

51. In the absence of such directions, there is a very real issue whether the Court would permit the Applicants to lead expert evidence at the contempt hearing. This is especially the case when there is no evidence by when the expert evidence could be served and bearing in mind that the First Respondent might wish to seek expert evidence in reply which would likely have the effect of causing the hearing date to be vacated. This is contrary to the overriding principles as well as the specific principle which applies that contempt proceedings be dealt with expeditiously. The prospect of the service of further expert evidence at this late stage will only lead to an increase in litigation costs.

52. The Court would not be satisfied it is appropriate to exercise its discretion and allow access to the site for the following reasons:

1. The Applicants bear the onus of proving the case beyond reasonable doubt;

2. The Applicants seek an order which undermines the First Respondent’s privilege against self-exposure to penalty;

3. The Applicants have not sought leave to rely on expert evidence and have not provided any reason why expert evidence is now required in the proceedings;

4. The Applicants’ request for access is in circumstances where the evidence is at risk of exclusion pursuant to s 138 of the Evidence Act;

5. Allowing access to the Property will only result in prolonging the contempt proceedings and increasing costs for all parties; and

6. The First Respondent has a right to privacy and quiet enjoyment of their land without the interference of the Applicants.

Consideration

53. It is a well established principle that the Applicants bear the onus of proving civil contempt beyond reasonable doubt: Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [43]. There is no dispute the Court has power to make the orders sought under r 23.8 of the UCPR. The issue is whether the Court ought to exercise its discretion to make the orders sought by the Applicants. It is necessary to deliver this judgment promptly due to the pending hearing on 5 and 6 October 2023 of the contempt proceedings.

54. Malass and Li do not assist the Applicants. In Malass the defendant had pleaded guilty to contempt before the order for access was made and the party seeking the order was a local council acting as a regulatory authority. I note the privilege against self-exposure to penalty was not raised before the Court in Malass. Li was not contempt proceedings. There is no analogous case including in relation to the operation of the privilege against self-exposure to a penalty.

55. That a factual dispute exists on the evidence is not decisive given this occurs in many cases. I observe that based on the affidavit evidence of Mr Elgammal the extent of the work undertaken in relation to the Northern Slab appeared clearer than the extent of the work undertaken on the Southern Slab. The nature of the obligations imposed by the Court’s orders of 30 September 2022 as to what ‘demolish’ requires may well be in contention which does not necessarily require expert evidence.

56. Relieving the Court of the burden of making factual findings is irrelevant to whether an order for access ought be made. The circumstance that the First Respondent’s defence was not known until his affidavit was filed is not persuasive given the obligation on the mover of contempt proceedings to prove their case.

57. The application to rely on expert evidence under r 31.19 of the UCPR was made late, not being done formally in court until revised orders in the contempt proceedings were provided in the course of the hearing of the notice of motion for access. Identifying to the First Respondent that expert evidence would be needed in the Applicants’ view is not an application to the Court for the purposes of r 31.19.

58. As the First Respondent submitted the common law presumption of privacy of use of property applies as it does for all property owners in NSW and beyond. This operates generally as a foundational presumption available to property owners. Its application is wider than the literal circumstance which the Applicants addressed of whether the personal privacy of the First Respondent would be affected through submissions that he need not be present when the expert attended and his privacy was not affected because he is not living at the site given that it is still under development and no occupation certificate has been issued. The effect of the orders if any on the personal privacy of the Respondent does not assist the Applicants.

59. Given the related common law right of quiet enjoyment of property that no reason was given for refusing access to an expert on instructions by the First Respondent’s solicitor is also immaterial to the exercise of discretion. Nor did the First Respondent have to provide any evidence to support his refusal.

60. The Applicants’ submissions do not take into account that these are adversarial contempt proceedings between neighbours. There is no obligation on the First Respondent to co-operate with the Applicants in these circumstances which is the unstated assumption which seems to underpin some of the Applicants’ submissions. The Applicants have to prove contempt in civil proceedings the outcome of which can result in penalty and imprisonment in worst cases. I am inclined not to make the orders sought for the reasons I have already identified.

53. Turning to the privilege against self-exposure to penalty, the proceedings potentially expose the First Respondent to the imposition of a penalty if proved. No authority considering the application of that privilege in the circumstances before the Court under r 23.8 was identified by the parties which is not a criticism as it is likely there is none. Given that the principle is a common law principle, that there is no statutory provision addressing its application in relation to r 23.8 can be noted but that does not take the question of its application any further.

54. In the time available to prepare the judgment a thorough review was not possible of the High Court and other authorities referred to by the First Respondent summarised above in [48]-[54] and the additional reference to Sorby in the High Court. The observations in the High Court of Nettle J that the privilege against self-exposure to penalty exists in his separate judgment in CFMEU cited in Kostov, Daniels citing Naismith, and in Pyneboard confirm the importance of the privilege. Several Federal Court cases also confirm its importance, particularly Television Broadcasts as summarised above in [41]-[44]. Several cases address civil proceedings for criminal contempt.

55. The cases inevitably address different statutory contexts, for example Daniels considered whether or not s 155(1) of the Trade Practices Act 1974 (NSW) enabled discovery by the Australian Competition and Consumer Commission of documents for which legal professional privilege was claimed finding the section did not.

56. On balance I consider the cases referred to by the First Respondent, including Sorby at 318-319, support a finding that the privilege should apply in civil proceedings for contempt accepting at this point it is unknown if criminal contempt will be alleged.

57. One point of distinction sought to be made by the Applicants in relation to the cases referred to is that the principle was being considered in the context of discovery of documents by a party or answers to questions were sought to be asked of a defendant, namely evidence was to be provided directly by (‘from the mouth of’) a defendant. These cases were distinguished by the Applicants on the basis that here they are seeking an independent expert to attend the First Respondent’s Property and the First Respondent will not be required to provide anything if the order is made.

58. No direct authority on this important point is before the Court. These are adversarial proceedings in which the Applicants bear the onus of proof of the contempt. The independent expert is being sought by the Applicants to potentially prove their case. The orders require the First Respondent to make the Property available to enable the expert to attend and prepare evidence that may be used against him in the contempt proceedings. In these circumstances no relevant distinction should be made from the application of the principles identified by the High Court and other authorities relied on by the First Respondent. Accordingly, the authorities relied on by the First Respondent support his reliance on the privilege against self-exposure to penalty and that is another basis why the orders in the notice of motion should not be made.

59. Making the orders sought in the notice of motion is not in the interest of justice, nor provides for the just, quick or cheap resolution of proceedings.

60. I will make an order dismissing the Applicants’ notice of motion dated 25 July 2023.

Orders

69. The Court orders:

1. The Applicants’ notice of motion dated 25 July 2023 is dismissed.

2. Costs reserved.

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Decision last updated: 12 September 2023