Shoalhaven City Council v Knight

[2019] NSWLEC 138

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shoalhaven City Council v Knight [2019] NSWLEC 138
Hearing dates:	25 February, 27 May and 19 September 2019
Date of orders:	30 September 2019
Decision date:	30 September 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [99]
Catchwords:	CONTEMPT - Class 4 proceedings for development without consent - matter referred to mediation - Consent Orders setting timetable for removal of waste material and demolition and removal of unauthorised dwelling - orders included provisions for substituted performance - no compliance with removal orders by Respondent - Respondent charged with contempt - Council undertakes substituted performance to clean up the site and remove the unauthorised dwelling - consideration of the Respondent's subjective circumstances - appropriate starting penalty a fine of $15,000 - Respondent's plea of guilty - appropriate to give 15% discount for plea - consideration of Respondent's financial circumstances - regard had to the extent of the Council’s costs to be ordered to be paid by the Respondent - requirement for the Respondent to reimburse the Council for the costs of the clean-up - appropriate to permit the Respondent 90 days in which to reimburse the Council the costs of the clean-up - Respondent fined $1,000. COSTS - appropriate to require the Respondent to pay the Council’s costs of the contempt proceedings on the indemnity basis - consideration of time to pay - appropriate to permit the Respondent 90 days within which to pay the Council’s costs - costs order made as a gross sum order pursuant to s 98(4)(c) of the Civil Procedure Act 2005
Legislation Cited:	Civil Procedure Act 2005, ss 26 and 98(4)(c) Crimes (Sentencing Procedure) Act 1999, s 21A Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 128 Fines Act 1996, ss 6 and 122
Cases Cited:	Blacktown City Council v Everson [2019] NSWLEC 4 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Cumberland Council v Khoury [2017] NSWLEC 14 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Environment Protection Authority v Barnes (2006) NSWCCA 246 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183
Category:	Principal judgment
Parties:	Shoalhaven City Council (Applicant) Garry John Knight (Respondent)
Representation:	Counsel: Mr J Lazarus, barrister (Applicant) Respondent in person (on 27 May and 19 September)   Solicitors: Maddocks Lawyers (Applicant)
File Number(s):	347313 of 2018
Publication restriction:	No

TABLE OF CONTENTS

Introduction

Service of orders timetable

The Consent Orders of 1 September 2014

These contempt proceedings

The accumulation of material on the site

The hearings

Mr Knight's evidence

Introduction

Mr Knight's evidence on 27 May

The adjournment on 27 May

Mr Knight's evidence on 19 September

Mr Knight's expectations from a possible sale outcome of the site

The clean-up of the site

Introduction

The cost of the clean-up

The Council's reimbursement claim

Mr Knight's complaint concerning the clean-up

Conclusion on clean-up costs

Consideration of the appropriate starting penalty for Mr Knight’s contempt

Introduction

The application of the Crimes (Sentencing Procedure) Act 1999

Characterisation of the contempt

Sentencing factors

Introduction

Mr Knight's guilty plea

The reasons for Mr Knight's commission of the contempt

Contrition and remorse

Mr Knight's record

Specific deterrence

General deterrence and denunciation of the contempt

The appropriate starting penalty

Mr Knight's capacity to pay

Introduction

Moderation of penalty

Time to pay

Costs

Orders

JUDGMENT

Introduction

1. Mr Knight is the owner of a residential allotment (the site) in the village of Tomerong on the New South Wales south coast. Tomerong is within the local government area administered by Shoalhaven City Council (the Council).

2. Some time prior to 2015, a dwelling was erected on the site by Mr Knight. That dwelling was erected without development consent being granted by the Council, in circumstances where such consent was a mandatory prerequisite to the erection of such a dwelling. In addition, over the years, Mr Knight accumulated a number of vehicles, a boat, a caravan and other items on the site.

Service of orders timetable

3. On 24 January 2014, the Council commenced Class 4 proceedings in this Court. The proceedings were commenced because the Council considered that Mr Knight had constructed a dwelling on the site, and was occupying that dwelling, without the dwelling being erected pursuant to development consent granted under the Environmental Planning and Assessment Act 1979.

4. On 22 August 2014, Walton AR referred, by consent, the Class 4 proceedings to mediation pursuant to s 26 of the Civil Procedure Act 2005 (the Civil Procedure Act). The Chief Judge assigned the mediation to me in my then capacity as the Court's Senior Commissioner. On 1 September 2014, I conducted a mediation which resulted in agreement between Mr Knight (who was legally represented on that occasion by Mr S Nash of counsel) and the Council (which was also legally represented).

5. In order to give effect to the agreed outcome, the proposed Consent Orders were referred to Pain J as the Duty Judge. On 1 September 2014, Consent Orders arising from the mediation were made by her Honour. Mr Knight and the Council were also both legally represented before her Honour when she made those orders.

The Consent Orders of 1 September 2014

6. The Consent Orders of 1 September 2014 were in the following terms:

The Court orders by consent:

1   Without admissions, that the Respondent remove the Dwelling House (identified as ‘H’ on the attached plan) and all ancillary structures (including the Garden Shed marked ‘I’, Water tank marked “G’, clothes line marked ‘J’ and cubby house marked ‘K’ on the attached plan and all wastewater and sewerage systems associated with the Dwelling House) on Lot 57 DP 11629,also known as Lot 57, Invermay Avenue, Tomerong (Land) within 12 months of the date of this order.

2   That pursuant to section 121ZJ of the Environmental Planning & Assessment Act 1979 (EP&A Act), if the Respondent does not comply with Order 1 above, that the Applicant, by its employees, agents or contractors, is entitled to enter the Land and do all necessary things to remove the Dwelling House and ancillary structures on the Land and recover the reasonable costs of doing so from the Respondent as a debt.

3   Without admissions, that the Respondent, and his servants and agents, cease using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining any necessary consent, approval or certificate under the EP&A Act, after the expiry of 6 months of the date of this order.

4   After the expiry of 6 months, the Respondent, and his servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the Respondent, or his successors in title, obtain any necessary consent, approval or certificate for the use of the Land in accordance with the EP&A Act.

5   That the Respondent, and his servants and agents, remove from the Land within 6 months of the date of this order the following items identified on the attached plan:

(a)   Boat marked ‘C’.

(b)   Camper marked ‘D’.

(c)   Ute marked ‘E’.

(d)   4x4 car marked ‘F’.

(e)   Car trailer marked ‘M’.

6   That pursuant to section 121ZJ of the EP&A Act, if the Respondent does not comply with Order 5 above, that the Applicant, by its employees, agents or contractors, is entitled to enter the Land and do all necessary things to remove the identified items from the Land and recover the reasonable costs of doing so from the Respondent as a debt.

7   That the Respondent be permitted to apply to the Court to extend the time periods identified in orders 1, 3 and 5 if:

(a)   the registration of an easement for the purposes of a fire trail at the rear of the land, identified in Figure 2 of the Jerberra Estate Development Control Plan No 125, is imminent, and

(b)   the Respondent has obtained development consent or such other approval or permission under the Environment Planning and Assessment Act 1979 for a dwelling on the Land.

8   For the avoidance of doubt, orders:

(a)   3, 4, 5 and 6; and

(b)   1 (to the extent it requires the removal of the ancillary structures)

are discharged if, before the time for compliance with those orders, the Respondent seeks and obtains legal authority under the Environment Planning and Assessment Act 1979 for the relevant use of the Land to which the orders are directed.

9   That each party pay its own costs.

7. It is not necessary to reproduce the map with annotations of the locations of the various items on the site that the orders obliged Mr Knight to remove. It is simply sufficient to note that the orders required Mr Knight to remove listed elements within six months of the date of the orders and to remove the remaining listed items (particularly the dwelling) within 12 months of the date of the orders.

8. It is sufficient, for present purposes, to note that, as at 12 November 2018 (being the date of the filing for the Council of the Notice of Motion initiating these contempt proceedings), Mr Knight had not fulfilled any of the obligations placed on him by the terms of the 1 September 2014 Consent Orders.

9. It is appropriate to note that the rights granted to the Council by the Consent Orders of 1 September 2014 permitted the Council to undertake clean-up activities on the site, in the event that Mr Knight failed to meet his obligations, were not acted upon by the Council until mid-2019 during the course of these proceedings.

These contempt proceedings

10. On 12 November 2018, the Council's solicitors filed a Notice of Motion in the Class 4 proceedings seeking that Mr Knight be punished for contempt, with that contempt arising as a consequence of his failures to meet his obligations imposed by the 2014 Consent Orders. The contempt proceedings were assigned by the Chief Judge to me in my (now) capacity as a Judge of the Court.

11. The orders sought by the Council in these contempt proceedings are in the following terms:

1   That the Respondent, having failed to remove the Dwelling House and all ancillary structures on Lot 57 DP 11629, also known as Lot 57, Invermay Avenue, Tomerong (Land) within 12 months of the date of the order, that is by 1 September 2015, is in breach of order 1 of the orders made by the Court on 1 September 2014 in these proceedings (the Orders), and is guilty of contempt of Court.

2   That the Respondent, having failed to remove the items identified in the plan attached to the Orders, being (inter alia) the:

(a)   Boat marked ‘C’;

(b)   Camper marked ‘D’; and

(c)   Ute marked ‘E’;

within 6 months of the date of the order, that is by 1 March 2015, is in breach of order 5 of the Orders, and is guilty of contempt of Court.

3   The First Respondent be fined an amount that this honourable Court deems fit payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine in such sum as the Court deems fit payable on the first calendar day of each month after the date of this order, until the works the subject of prayers 1 and 2 above have been completed.

4   That the Respondent pays the Applicant's costs of this Notice of Motion.

12. As earlier noted, as at the date of commencement by the Council of these contempt proceedings, the Council had not exercised its rights, pursuant to orders (2) or (6) of the 1 September 2014 orders, to enter the site and carry out the necessary removal activities for which it had authority pursuant to the Consent Orders made on 1 September 2014. However, the Council has now done so and the site has been cleaned up.

The accumulation of material on the site

13. It was clear from the photographic evidence of the various inspections undertaken by Mr Staples, a Compliance Officer employed by the Council, over many years that Mr Knight has simply accumulated a range of items and material on the site where the effluxion of time had rendered those vehicles or structures now to have limited utility (if any at all).

14. Whilst the photographic evidence does not disclose that Mr Knight has accumulated any significant further material on the site since the making of the Consent Orders in 2014 (a point to be taken in his favour), there is no doubt that the photographic evidence demonstrates the broad public health and amenity desirability of the site being cleaned up.

15. Such circumstances, in a generally analogous fashion, are not uncommon in matters before this Court. Whilst the Council does not suggest, in these proceedings, that Mr Knight is a hoarder (as that term might be applied to persons who persistently continue to accumulate material and make no effort to respond to clean-up orders as they are psychologically incapable of doing so), it is no doubt the position that the burdens of life that have fallen on Mr Knight have rendered him incapable of adhering to the timetable for cleaning up all the material specifically identified in the plan attached to the 2014 Consent Orders.

The hearings

16. The matter was heard on 25 February, 27 May, 1 July and 19 September 2019. Mr Knight participated in the second, third and fourth of these hearings.

Mr Knight's evidence

Introduction

17. Mr Knight gave oral evidence on two occasions, these being the hearings on 27 May and 19 September 2019. It is appropriate, to enable a proper understanding of what has occurred in these proceedings, that I explain the steps taken to provide the necessary procedural assistance to Mr Knight on each occasion as a consequence of him being a self-represented litigant.

18. Mr Knight had not provided any documentary material at all at any time prior to him being permitted to go into the witness box on either 27 May or 19 September 2019.

19. Before Mr Knight commenced his oral evidence on each occasion, I explained to him the difference between evidence and submissions.

20. I told him that I proposed to permit him to give his evidence on a narrative basis, without needing to draw any distinction between what he said which would be evidence, and what he said which should be taken as submissions.

21. I explained to him that, by permitting him to speak on that basis, I (and Mr Lazarus, counsel for the Council) would take what he said, which was properly to be regarded as evidence, as being evidence, whilst that which he said, which should properly be regarded as submissions, would be taken as such.

22. Mr Lazarus raised no objection to this explanation or to the process to be followed.

23. I also explained to Mr Knight that, if he elected to give evidence, at the conclusion of that process Mr Lazarus would be entitled to cross-examine him.

24. Mr Knight then gave evidence in that narrative fashion on each occasion. He did not rely upon any documents for this purpose.

Mr Knight's evidence on 27 May 2019

25. Mr Knight gave evidence and was cross-examined by Mr Lazarus. Mr Knight also pleaded guilty to the contempt with which he was charged.

26. During the course of his narrative evidence, Mr Knight outlined his present personal circumstances, including the fact that he had recently been able to obtain accommodation in public housing in Nowra. This, he explained, gave him hope that this would be a stabilising position for him and his children. It was his evidence that he was presently unemployed and that his motor vehicle was out of registration, a position which he could not afford to rectify. His sole income was from the Centrelink benefit he was receiving. He testified that he had no other assets, apart from his ownership of the site.

27. He acknowledged that he was indebted to the Council for a significant sum as a result of his non-payment of rates for a number of years. He expressed the hope that the imminent sale of the site (his hopes for which are separately discussed) would give him a modest capital amount permitting him a clean-sheet start in life.

28. Mr Knight indicated that he was in the process of selling the site and that it would be necessary for him to clean up the site to a fashion that satisfied the obligations imposed on him by the 1 September 2014 orders before the sale could be effected. This sale expectation is dealt with in more detail in a later section of this judgment.

29. Mr Lazarus put the proposition to him that he was, in fact, in employment and was working at a location in Port Kembla. Mr Knight explained that he had been attending a location in Port Kembla but it was for the purposes of employment readiness training and that he was not, in fact, employed (at Port Kembla or anywhere else).

30. Mr Knight agreed with Mr Lazarus when he proposed to Mr Knight the name of the person who the Council considered was potentially the possible purchaser of the site. Mr Knight confirmed that the person advanced by Mr Lazarus was, in fact, the person that he, Mr Knight, contemplated was the possible purchaser of the site.

31. I allowed time during the course of the proceedings on 27 May 2019 to provide opportunities for the Council to seek to make contact with this identified individual so that the Council might be better informed as to the prospect of such a sale eventuating.

32. It subsequently became the position that Mr Lazarus advised me, on instructions, that contact had been made with the identified individual. For the purposes of that with which I need to deal, it is sufficient to note that I was advised that Mr Knight's appreciation of the prospect of a sale to the identified individual was significantly more optimistic that a sale would occur than had become the Council’s understanding of the position after conversation between the Council's solicitors and the identified individual.

The adjournment on 27 May 2019

33. Toward the end of the hearing on 27 May 2019, Mr Knight indicated that he wished to seek an adjournment in order to enable him to obtain legal assistance. The Council did not oppose this course of action being followed, and I adjourned the matter until 1 July 2019.

34. It is not necessary to set out in detail what took place on that following occasion. It is sufficient to note that it was appropriate to adjourn the proceedings further to enable the Council to exercise the rights given to it to go in and effect removal of all of the items which Mr Knight had been obliged to have removed by the various orders for that purpose in the Consent Orders of 1 September 2014.

35. On 1 July 2019, the proceedings were further adjourned until 19 September 2019 to permit the Council sufficient time to effect those necessary clean-up activities. On that day, Mr Knight advised that he had been unable to obtain legal assistance for these proceedings.

Mr Knight's evidence on 19 September 2019

36. On 19 September 2019, Mr Knight gave further oral evidence in the narrative fashion. Essentially, that evidence reiterated the evidence he had given on 27 May 2019 with respect to his personal circumstances and his lack of financial capacity to meet any penalty which might be imposed on him. Mr Lazarus then cross-examined Mr Knight. It is unnecessary to address matters of detail in this regard, but it is sufficient to observe that:

• Given that Mr Knight was a self-represented litigant, it was necessary for me to advise him of, and afford him the protection given by, s 128 of the Evidence Act 1995 in circumstances where Mr Lazarus's questioning was directed to obtaining (and did obtain) admissions from Mr Knight that he had lied in a number of material respects in his oral evidence given on 27 May 2019; and

• The matters about which Mr Knight admitted to lying relevantly went to correct the position concerning whether or not the site was being sold and as to what steps Mr Knight had previously asserted he had taken to obtain assistance to clean up the site in compliance with the 2014 Court orders.

Mr Knight's expectations from a possible sale outcome of the site

37. It was Mr Knight's expectation that the site was worth approximately $180,000 in a cleaned-up and unencumbered state. To enable some understanding of what his expectation would be if such a sale was effected, he gave evidence that he had debts to the Council for unpaid rates covering a number of rating years. It was his understanding that the total of those outstanding rates was of the order of $37,000. Mr Lazarus confirmed that this was an accurate estimate of the position.

38. I have earlier, briefly, discussed the personal circumstances in which Mr Knight presently finds himself. It is unnecessary to deal with them in any significant extent. It is, however, appropriate to note that it was Mr Knight's estimate, on 27 May 2019, that, if he was able to sell the site in a cleaned-up and unencumbered state (that is, discharging his outstanding rates to the Council as part of the settlement process, it is to be inferred), he would receive, perhaps, $80,000, after making modest provision for his future social necessities such as a registered motor vehicle (to be inferred from his evidence as being a modest conveyance).

39. This estimate as to his post sale financial circumstances, if realised in the optimistic fashion about which he gave evidence, made no allowance for any potential financial penalty arising out of these contempt proceedings or any debts being imposed upon Mr Knight if a costs order was to be made against him arising out of these proceedings (both these being outcomes proposed for the Council as being appropriate to follow as a consequence of my determination of the Council’s contempt motion).

40. I deal later, separately, with the question of the Council’s costs. For the present purposes, it is sufficient to observe that, if I adopt the position advanced for the Council as the appropriate outcome of these proceedings, such an outcome would entirely consume (and more) any potential financial benefit which might otherwise flow to Mr Knight if his hoped-for sale of the site was to eventuate.

41. Indeed, as advanced to me (that a substantial financial penalty should be imposed on Mr Knight and that he should be ordered to pay the Council’s costs on the indemnity basis), not only would the entirety of any potential net proceeds from the sale of the site in Mr Knight's hands be consumed as a consequence of such outcome, but Mr Knight would be left significantly in debt. Such a debt, for reasons discussed in the “Costs” section of this judgment, would be in excess of $50,000 to the Council if I made the proposed costs order that the whole of the net proceeds from sale of the site were to be applied for that purpose and Mr Knight would still owe the total sum of any penalty I might determine was appropriate to be imposed.

42. Given what Mr Knight had told me during the course of his giving of his narrative evidence concerning how the vicissitudes of life have played out on him over recent years, I have little doubt that the outcome of imposing a significant penalty would put a potentially crushing financial burden on Mr Knight.

43. In making these observations, I am not to be taken to be suggesting that these matters could play any part in these proceedings other than those which are properly required to be taken into account pursuant to s 6 of the Fines Act 1996 (the Fines Act). It is necessary for me to have regard to the financial means of a person upon whom it is appropriate to impose a financial penalty.

The clean-up of the site

Introduction

44. Following the hearing on 27 May 2019, the Council arranged for the clean-up of the site.

45. Evidence of the clean-up process and its costs were set out in a further affidavit deposed by Mr Staples dated 19 August 2019 and, at least initially, read without objection from Mr Knight. It is necessary to discuss, later, an objection raised by Mr Knight to one aspect of the clean-up process.

46. The clean-up operation comprised three separate phases. The first of those phases involved the Council engaging a consultancy to undertake an assessment of environmental risks associated, potentially, with undertaking the clean-up activity. Such an assessment was appropriate in circumstances where there was a risk of the presence of asbestos on the site and where there had also been at least one vehicle fire on the site (on Mr Knight's own evidence) which could have had the potential to cause other forms of contamination.

47. The second phase of the clean-up comprised what is to be regarded as the substantive operational phase during which the majority of the material on the site that required to be removed from it was collected by a contractor and taken away.

48. The final phase of the clean-up involved the removal, by a subsequent and different contractor, of two large items, these being a vehicle-mountable camper and a boat.

49. The contractor engaged by the Council to undertake the first operative phase of the clean-up effected this on 25 July 2019. The second phase, involving a separate contractor, took place on 2 August 2019.

50. Following completion of these clean-up activities, I am satisfied that, on the basis of the relevant elements of Mr Staples’ most recent evidence, the site is now in a state which satisfies the clean-up requirements mandated by the Consent Orders made in September 2014. Although the clean-up was not conducted by Mr Knight, the Council's clean-up activities have had the effect of purging Mr Knight's contempt and no further site clean-up activities are required.

The cost of the clean-up

51. Mr Staples’ recent affidavit sets out the details of the amounts invoiced to the Council for each of the three clean-up phases. Those invoices were from:

1. ENRS Pty Ltd for $660.00, being the cost of the risk assessment;

2. Worldwide Demolitions for $17,490.00, being for carrying out the major clean-up phase on site; and

3. David Byrne Crane & Tilt Tray Hire for $770.25, being for the removal of the camper and boat.

52. It is to be observed that the total of all three of these invoices is $18,920.25.

The Council's reimbursement claim

53. At the hearing on 19 September 2019, Mr Lazarus handed up the orders which the Council proposed that I should make to finalise these proceedings. Those proposed orders included, at [3], that Mr Knight reimburses the Council $17,270.25 (being a GST-excluded amount) toward the actual cost of cleaning up of the site. It is relevant to note that this amount is less than the amount invoiced to the Council for the contractor who undertook the second and principal phase of the clean-up activities on the site.

Mr Knight's complaint concerning the clean-up

54. Although Mr Staples’ affidavit concerning the clean-up activities had become evidence without objection from Mr Knight, Mr Knight subsequently raised an objection to the invoice for the third phase of the clean-up activities. His objection was put on the basis that that work had, in fact, not been carried out as the two items concerned were the property of his brother and that his brother had, himself, removed those items. Thus, Mr Knight proposed, the contractor who had invoiced for this work had invoiced for work which had not been performed.

55. As I pointed out to Mr Knight at the time, it was not necessary for me to make any determination about his complaint as the reimbursement amount sought by the Council for clean-up costs was less than the GST-inclusive cost of the primary clean-up phase. In any event, it would have been appropriate to rely upon [30] and [31] of Mr Staples’ August 2019 affidavit as to the removal of these items had it been necessary to do so.

Conclusion on clean-up costs

56. I am satisfied that it is appropriate to order that Mr Knight reimburse the Council $17,270.25 towards the costs incurred by the Council in carrying out the clean-up of the site.

Consideration of the appropriate starting penalty for Mr Knight’s contempt

Introduction

57. It is necessary, for the purposes of my considering what should be the appropriate starting penalty to punish Mr Knight for his failures to carry out the obligations he accepted pursuant to the Consent Orders of 1 September 2014, that I set out, first, the framework within which I approach the sentencing process and my consideration, then, of how Mr Knight's contempt is to be characterised. After I have done so, it is then necessary to set out all of Mr Knight's relevant subjective factors and address matters of general deterrence to send a message to the community as to the inappropriateness of Mr Knight's conduct before undertaking the appropriate process of instinctive synthesis (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25) of weighing up all the relevant objective and subjective factors for the purposes of deriving the appropriate starting penalty to be applied to Mr Knight.

The application of the Crimes (Sentencing Procedure) Act 1999

58. In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340, at [33] to [39], Basten JA explained (Meagher JA agreeing) why the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) was not applicable to punishment of a contemnor. This decision arose in the context of the setting of the length of a custodial sentence having regard to the provisions of this legislation. This decision makes it clear that any formal application of the Sentencing Procedure Act would be an error of law.

59. The following 10 factors relevant to sentencing for contempt were identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (Wood v Staunton), at 185:

(1)   the seriousness of the contempt proved;

(2)   whether the contemnor was aware of the consequences to himself or herself of what he or she did;

(3)   the actual consequences of the contempt on the relevant trial or inquiry;

(4)   whether the contempt was committed in the context of serious crime;

(5)   the reason for the contempt;

(6)   whether the contemnor has received any benefit by indicating an intention to give evidence;

(7)   whether there has been any apology or public expression of contrition;

(8)   the character and antecedents of the contemnor;

(9)   general and personal deterrence; and

(10)   denunciation of the contempt.

60. However, for the reasons I explained in Cumberland Council v Khoury [2017] NSWLEC 14, at [42], although the Sentencing Procedure Act does not apply to sentencing for contempt, it does provide, by analogy, a useful framework for consideration of the objective and subjective factors to which it would be otherwise mandated to have regard had the Sentencing Procedure Act in fact applied (see also Canterbury City Council v Ali Ahmed [2016] NSWLEC 160, at [19], and Blacktown City Council v Everson [2019] NSWLEC 4, at [17]).

61. Only a limited number of the matters set out in Wood v Staunton are relevant in the circumstances of these contempts. Those noted in (1), (5) and (7) to (10) are relevant. They are also factors which find parallels in the relevant provisions of s 21A of the Sentencing Procedure Act. As a consequence, I do not perceive any tension between the guidance given in Wood v Staunton and my having regard to the various relevant provisions of the Sentencing Procedure Act as providing a framework for dealing with these two acts of contempt.

62. It is in the context of the provision of an appropriate framework for analysis that I adopt, as a guide, the structure of the terms of s 21A of the Sentencing Procedure Act as providing a basis for my consideration of all the factors engaged in sentencing Mr Knight for this charge of contempt.

Characterisation of the contempt

63. Contempt can be characterised in various different ways depending on, relevantly for these proceedings, the reasons why there has not been fulfilment of the obligations imposed on Mr Knight by the Consent Orders in 2014. The two classes of contempt potentially engaged in these proceedings are contumacious contempt and wilful contempt.

64. 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. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, at 315, Kirby P said:

This class of contempt (contumacious) is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order. (Citations omitted)

65. Wilful contempt is where the disobedience is more than casual, accidental or unintentional, but is not contumacious.

66. The Council submits that the contempt in this case is contumacious and the facts do disclose an element of deliberate defiance of the Consent Orders. I accept that the contempt is to be so regarded.

Sentencing factors

Introduction

67. I have earlier explained why, by analogy, it is appropriate to have regard to the relevant matters in s 21A of the Sentencing Procedure Act as part of my consideration of the relevant objective and subjective factors arising with respect to Mr Knight's contempt. I now turn to consider the subjective factors relevant to Mr Knight, there being no suggestion that any significant environmental harm has been caused as a consequence of his failure to clean up the site within the specified periods of time and no other potential aggravating factors are here engaged.

Mr Knight's guilty plea

68. Mr Knight entered a plea of guilty to the charge of contempt on 27 May 2019. Whilst this was not the earliest available occasion when this could have occurred - as there was an interlocutory hearing before Pepper J on 1 February 2019 and a first hearing of the contempt motion before me on 25 February 2019 (with Mr Knight not appearing on either occasion) - I am satisfied that Mr Knight is entitled to a discount of 15% on the penalty which would otherwise be appropriate to be imposed for his failure to obey the Consent Orders of 1 September 2014.

The reasons for Mr Knight's commission of the contempt

69. Having listened to Mr Knight's oral evidence on two occasions, and having closely observing his demeanour in the witness box, I am satisfied that it is appropriate to conclude that Mr Knight has been deliberately unable to comply with the obligations put on him by the orders to which he agreed in September 2014 because of a combination of factors including, at least:

1. his unemployment (and, I consider, his lack of realistic future employability);

2. his needing to address his substance abuse difficulties of varying types; and

3. the removal of his children as a consequence of intervention by the State’s child protection authorities the impact he described of this on him.

70. Put simply, I am satisfied that Mr Knight was unable to cope with, or functionally address, the problems he had caused himself by his unlawful dwelling construction and occupation and by his accumulation of what is appropriate to be described (from the photographic evidence before me through the medium of Mr Staples’ various affidavits) as an accumulation of “junk” on the site.

71. Whilst this does not lessen my conclusion that Mr Knight's contempt is to be characterised as contumacious - in that his failure to give effect to his obligations under the 2014 orders was deliberate and persistent - nonetheless, his personal circumstances do provide some insight as to why this occurred.

Contrition and remorse

72. Although Mr Lazarus's cross-examination, at the hearing on 19 September 2019, revealed that Mr Knight had lied in a number of material respects during his oral evidence in May, I am satisfied that he has expressed, to a limited extent at the least, some very modest element of contrition and remorse for his failure to carry out his clean-up obligations. I am prepared to accept that his plea of guilty, on the first occasion when he had attended the Court during these hearings, is to be taken as an element of that expression of remorse.

Mr Knight's record

73. Mr Knight has no convictions relevant to my consideration.

Specific deterrence

74. In his written summary of argument, Mr Lazarus submitted, on the topic of specific deterrence, at [62]:

Given the history of this matter, there is every reason to believe that the respondent fully appreciates the nature of the court's orders that need for him to comply with them. The seriousness of the breach and the length of the time that it has persisted in spite of the numerous indulgences granted to him, suggest that there is a very clear need for personal deterrence in this matter.

75. I later describe, in some detail, what will be Mr Knight's financial position as a consequence of, primarily, these proceedings but also because of his inability, over a significant period of time, to pay his council rates on the site. It seems to me that it is reasonable to conclude, given what will be Mr Knight's parlous financial position and the paucity of his employment prospects, that it is unlikely that Mr Knight will ever again be in a position to own a property, let alone undertake any significant construction activities on one.

76. As a consequence, in addition to concluding that there is no significant likelihood that Mr Knight will offend again in a similar fashion, I am satisfied that there is no utility, for the purposes of specific deterrence, in imposing a further financial burden going well beyond any reasonable expectation of his capacity to pay for the purposes of imposing specific deterrence when I consider that such specific deterrence would, functionally, be largely illusory.

General deterrence and denunciation of the contempt

77. Although I accept that there is no need for the sentence to be imposed on Mr Knight to reflect an element of specific deterrence, nonetheless, it is appropriate that the sentence to be imposed does reflect an element of general deterrence. This is because it is also necessary to send a broader message of the importance of upholding the integrity of the planning system (per Lloyd J in Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]).

78. This general sentiment was also repeated in the decision of Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242, at [104], where his Honour refers to the need for the upholding of the integrity of the system of planning and development control.

79. This position also applies in these circumstances. As a consequence, general deterrence is a factor to be taken into account in this sentencing process.

The appropriate starting penalty

80. I am satisfied that Mr Knight's offending conduct is to be characterised as being the middle of the lower range of such offending conduct. Weighing up all the subjective and objective factors appropriate to be considered, I am satisfied that the appropriate starting penalty to provide appropriate punishment for Mr Knight's offending conduct would be a fine of $15,000. This would then be reduced by the 15% discount to reflect Mr Knight's guilty plea. The resultant appropriate starting penalty is, therefore, $12,750.

Mr Knight's capacity to pay

Introduction

81. Mr Knight's capacity to pay any sums to which he will become obligated as a consequence of these proceedings is relevant in two separate respects. The first is the extent to which I need to have regard to his personal financial circumstances for the purposes of determining whether s 6 of the Fines Act should cause me to moderate any financial penalty which might otherwise be appropriate to impose on him. The second purpose for which it is appropriate to consider his financial circumstances is the time within which he should be required to pay any amounts that are appropriate to be made subject to a specific time period requirement in orders made in these proceedings.

Moderation of penalty

82. I am obliged by the terms of s 6 of the Fines Act to have regard to Mr Knight's personal financial circumstances in determining what is the appropriate penalty to be imposed on him to punish him for his contempt. The statutory provision is in the following terms:

6   Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

83. In addressing the requirements of this provision, it is appropriate to note that Mr Lazarus acknowledged that the Council accepted that Mr Knight was in what might correctly be described as “straitened financial circumstances”. It is unnecessary to set these matters out with any precision. It is sufficient to note that Mr Knight is on Centrelink benefits, paying a high proportion of them in rent in order to have accommodation available for his children, when they are permitted to visit him. He is unemployed and, I am satisfied, for various reasons which do not require to be detailed, his present employment prognosis is poor.

84. As earlier detailed, Mr Knight's sole asset is the site, the state of which has given rise to these proceedings. It was his evidence that he anticipated being able to sell the site to the owner of other properties in the vicinity. As earlier noted, representatives of the Council have had contact with that developer and, although there is no contract for sale or, indeed, what I might regard as a sufficiently definite intention to purchase to be able to forecast when crystallisation of a sale might take place, I am satisfied that there is genuine interest in the site that has a deal of potential to give rise to Mr Knight being able to realise that asset (although not in the very immediate future).

85. However, it is also clear that such amount as might realistically be expected to result from such a sale will not result in any of the sale price remaining with Mr Knight in other than a transitory sense. This arises as a consequence of the fact that, after finalisation of these proceedings, Mr Knight will not only owe the Council in excess of $37,000 in back rates but will also owe the Council more than $17,000 for the costs of the clean-up of the site and nearly $160,000 in legal costs (these latter two sums arising as a consequence of the orders to be made in these proceedings). As can be seen, that total indebtedness will inevitably exceed the total realisation from the sale of the site. In reaching that conclusion, it is also to be acknowledged that some modest sale transaction costs are also likely to be incurred.

86. These are classic circumstances that engage the consideration mandated by s 6 of the Fines Act. I have earlier explained why the appropriate starting penalty, without moderation as a consequence of this statutory provision, would be $12,750. However, under the circumstances, I am satisfied that the fine should be significantly reduced to pay appropriate regard to Mr Knight's immediate financial circumstances and the fact that there is no realistic prospect, in my assessment, that they will improve in any significant fashion. Certainly, in the short-, and probably not in the medium-, term. It is also appropriate to have regard to the financial burden that the costs order to be made in these proceedings will impose on Mr Knight (Environment Protection Authority v Barnes (2006) NSWCCA 246).

87. As consequence, the appropriate fine to impose on Mr Knight, having regard to all the circumstances, is $1,000.

Time to pay

88. In the draft orders which the Council proposed that I should make, the Council proposed than I should mandate that any fine that I imposed, the amount specified in the order to reimburse the Council for its clean-up costs of the site, and the amount of the Council’s costs should all be mandated to be paid within 28 days. I consider it is appropriate, in the overall circumstances, to consider whether these timeframes are appropriate.

89. I turn, first, to the time within which it is proposed that I should specify to be imposed on Mr Knight to pay the fine imposed. As the Council has not sought that it be paid a moiety of the fine (pursuant to s 122 of the Fines Act), I am satisfied that the appropriate course to follow is to leave the question of collection of the fine to the relevant statutory authority rather than me making a specific time-limiting order. As I indicated to Mr Knight during the course of the hearing on 19 September 2019, any question of payment by instalments, or the like, was a matter for him to address with the Office of State Revenue and was not a matter that fell within my competence.

90. Next, in circumstances as here, where the Council seeks its clean-up reimbursement and legal costs orders in a fashion proposing a common, single time period for payment of 28 days, it is not a matter for me to address whether there might be some arrangement made with the Council concerning the scheduling of repayment. That is a matter entirely between Mr Knight and the Council.

91. However, it is appropriate that I consider what would be the proper time within which I should specify that Mr Knight must pay these amounts to the Council. I am not satisfied that the 28 days proposed by the Council is appropriate. I reached this conclusion after having regard to the fact that it will be necessary for Mr Knight to sell the site in order to discharge (at least the majority of) his indebtedness to the Council. I have earlier described my assessment, on the evidence, of the potential for such a sale.

92. It seems to me, in the circumstances, it is appropriate to allow Mr Knight a sufficient period within which to negotiate such a sale with the potential purchaser and for settlement of that sale to take place. However, I do not propose to allow a very lengthy period for this to occur, and Mr Knight will need to take prompt steps in order to seek to sell the site. Given that there is a single purchaser identified, and that the conventional post contract settlement is 42 days, it seems to me that it would be reasonable to allow Mr Knight 90 days within which to discharge his reimbursement and costs’ debts to the Council.

Costs

93. Mr Lazarus submitted, in writing and orally, that I should order that Mr Knight pay the Applicant's costs of these proceedings on the indemnity basis. These costs are $158,387.38 (detailed in Exhibit J).

94. Although there is no hard-and-fast rule that mandates that costs be awarded on the indemnity basis against those found to be in contempt of court, an applicant in such matters may reasonably expect that this would be the case unless there were some reason to depart from that position (see AGL Energy Ltd v Hardy (No 3) [2017] FCA 952, at [8] and [9], O’Callaghan J).

95. In these contempt proceedings against Mr Knight, there is no reason why it would be inappropriate to make costs orders against him on the indemnity basis.

96. In particular, the Council, as a public authority responsible for the administration of planning laws within its local government area, is not seeking vindication of some private right by commencing and prosecuting these contempt proceedings. The Council is seeking to uphold the integrity of the planning system and, by doing so, not only proposing that Mr Knight be punished for his breach of the orders of the Court but also, as earlier noted, to send a message of general deterrence to warn others against doing so.

97. I have, therefore, concluded that it is appropriate to award the Council its costs on the indemnity basis in the nominated sum.

98. However, for the reasons I have set out as to why it would be appropriate to permit Mr Knight a period of 90 days within which to reimburse the Council for its clean-up costs, I am similarly satisfied that it is appropriate to allow the same period of time within which Mr Knight is to pay the Council its costs pursuant to the gross sum costs order which I make pursuant to s 98(4)(c) of the Civil Procedure Act.

Orders

99. The Court orders that:

1. Mr Gary John Knight (the Respondent) is found guilty and convicted of contempt of court in that he breached the orders made by the Court on 1 September 2014 (the Orders):

1. Order 1 of the Orders by failing to remove the Dwelling House and all ancillary structures on Lot 57 DP 11629 also known as Lot 57, Invermay Avenue, Tomerong (the Land) being:

1. the garden shed;

2. the water tank;

3. the clothes line;

4. the cubby house; and

5. all wastewater and sewerage systems associated with the Dwelling House,

within 12 months of the date of the Orders, that is by 1 September 2015;

2. Order 5 of the Orders by failing to remove items from the Land being:

1. the boat;

2. the camper; and

3. the ute,

within 6 months of the date of the Orders, that is, by 1 March 2015;

2. The Respondent is fined $1,000;

3. The Respondent is ordered to pay the Applicant’s expenses for the demolition and removal of the Dwelling House and ancillary structures and items including the garden shed; the water tank; the clothes line; the cubby house; all wastewater and sewerage systems associated with the Dwelling House; the boat; and the camper from the Land in the amount of $17,270.25, payable within 90 days of the date of these orders, in full satisfaction of orders 2 and 6 of the Orders;

4. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005, the Respondent is ordered to pay the Applicant’s costs in the gross sum of $158,387.38 within 90 days of the date of these orders; and

5. The exhibits are returned.

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Decision last updated: 01 October 2019