Sidebottom v The Queen
[2018] VSCA 280
•2 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0217
| SHANAN JAMES SIDEBOTTOM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA, and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 October 2018 |
| DATE OF ORDERS: | 26 October 2018 |
| DATE OF JUDGMENT: | 2 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 280 |
| JUDGMENT APPEALED FROM: | Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 |
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CONTEMPT — Appeal — Sentence — Contempt — Undertaking by individual to ensure compliance by company with Court orders — Failure to abide by undertaking — Sentence of four months’ imprisonment — Whether contemnor punished for a contempt that he did not admit — Whether judge erred in rejecting sincerity of contemnor’s apology — Whether manifestly excessive — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr T McEvoy QC with Mr A T J Baker | Mr T Johnston, Stable Legal |
| For the Respondent | Mr L T Brown (Crown Counsel) with Mr J Bayly | Ms J Ryan, Victorian Government Solicitor’s Office |
PRIEST JA
BEACH JA
MACAULAY AJA:
Introduction
On 1 October 2018, in the circumstances that we will later describe, a judge in the Trial Division sentenced the appellant to four months’ imprisonment for contempt.
Following the hearing of an application for leave to appeal against sentence in this Court on 26 October 2018, the Court made orders granting the application for leave to appeal; allowing the appeal; setting aside the sentence of imprisonment; and remitting the matter for rehearing and determination by another judge. The Court indicated that it would later provide reasons for those orders. These are those reasons.
The proceeding
On 14 December 2016, the appellant gave an undertaking to a judge of the Supreme Court that he personally would ensure that a company, Sidebottom Group Pty Ltd (‘the company’), complied with orders of the Court made on 14 December 2016 (‘the orders’). He failed, however, to live up to that undertaking.
For more than a year, there was further non-compliance with the Court’s orders, until, on 22 June 2018, in proceedings seeking the committal of the appellant for contempt, a judge of the Court — by consent — pronounced both the appellant and the company to be in contempt for breach of the orders.
Before proceeding further, it is important to note the terms of order 2 of the consent orders filed on 22 June 2018, since they disclose the nature of contempt admitted by the appellant:
2. Mr Shanan Sidebottom is in contempt of court, pursuant to O 75 of the Supreme Court (General Civil Procedure) Rules 2015, by reason of:
a.the failure of the [company] to comply with paragraphs 1a, 1b, 1c and 1d of the [22 December 2016] order;
b.his failure, in contravention of the undertaking he gave to the Court (the terms of which are set out in the [22 December 2016] order) to personally ensure that the [company] complied with paragraphs 1a, 1b, 1c and 1d of the [22 December 2016] order.
On 19 July 2018, the judge heard argument as to whether the Court should proceed to conviction, and, if so, what penalty, if any, should be imposed. The judge concluded that both the appellant and the company should be adjudged guilty of contempt; and, on 1 October 2018, convicted the appellant and the company of criminal contempt. Her Honour sentenced the appellant to four months’ imprisonment, and fined the company $50,000.[1] Order 2 of the orders made on 1 October 2018 was in the following terms:[2]
[1]Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 (‘Reasons’).
[2]Emphasis added.
2. Shanan James Sidebottom (‘Mr Sidebottom’) is adjudged guilty of contempt of court by reason of:
a.the failure of the company to comply with paragraphs 1(a), 1(b), 1(c) and 1(d) of the [22 December 2016] order;
b.his failure, in contravention of the undertaking he gave to the Court (the terms of which are set out in the [22 December 2016] order), to personally ensure that the company complied with paragraphs 1(a), 1(b), 1(c) and 1(d) of the [22 December 2016] order;
and Mr Sidebottom is convicted and sentenced to a term of four months’ imprisonment for that criminal contempt.
We pause to note that the judge proceeded on the basis that there were two ‘charges’ of contempt, charge one comprising the company’s contempt and charge two the appellant’s, although she considered there to be but a single course of conduct. The judge said:[3]
… On 22 June 2018, by consent, I pronounced each of the company and Mr Sidebottom in contempt for breach of the 14 December 2016 order. For convenience, I will refer to these instances of contempt as separate ‘charges’, charge one comprising the contempt of the company and charge two that of Mr Sidebottom. In reality, however, there is only one course of conduct that falls to be considered, i.e. that of the company as directed by Mr Sidebottom.
We have approached the matter in much the same way.
[3]Reasons [5].
The appellant sought leave to appeal against his sentence on a number of grounds. As we have indicated, on 26 October 2018 we set aside that part of order 2 above which sentenced the appellant to four months’ imprisonment. We also made orders remitting the proceeding to the Trial Division for rehearing and determination by another judge.[4]
[4]See Criminal Procedure Act 2009, ss 282(1)(b) and (3).
The factual background
To a significant extent, the present proceeding revolves around the appellant’s failure to comply with Court orders concerned to effect the removal (and the management) of a large stockpile of used tyres stored on land situated in Saxton Street West, Numurkah (‘the land’), owned by the company. The relevant orders resulted from efforts made by the local planning authority, the Moira Shire Council (‘the Council’), to have the tyres — an alleged fire hazard — cleared from the land.
Planning permits obtained by the company from the Council indicate that the original intention was to develop a tyre recycling plant on the land. It seems that since 2007, however, the land principally has been used for the storage of used tyres. Several planning permits contemplating the use of the land for the purposes of a recycling plant were issued and extended by the Council, but they expired without any plant being built.
Thus, on 15 June 2007, the Council issued a planning permit allowing the land to be used and developed for the purpose of a tyre recycling plant; and, on 14 August 2009, the Council granted an extension of time so as to provide that the relevant buildings and works were to commence by 15 June 2010 and to be completed by 15 June 2012. A month later, on 17 September 2009, the relevant permit was amended to allow for the use and development of the land to occur in stages. Later still, on 24 May 2010, the Council issued a further planning permit, allowing the use and development of the land for the purpose of a tyre recycling plant). Almost two years later, on 9 May 2012, the director of the company at the time, John Cronin, wrote to the Council requesting an extension of time for a further two years.
Significantly, on 4 April 2013, the Country Fire Authority (‘CFA’) expressed concerns about the storage of tyres on the land; and, somewhat fatefully, on 2 May 2013, a number of tyres at the land contained within an area of approximately 50 square metres caught fire, causing disruption to the Numurkah community.
Three weeks later, on 24 May 2013, the Council filed an application in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for an enforcement order and an interim enforcement order under the Planning and Environment Act 1987. As a result, on 11 June 2013, the Tribunal made an interim enforcement order, designed to effect the removal and disposal of part of the stockpile of tyres on the land (and to limit the size of that part of the stockpile permitted to remain), and to put in place fire control measures. Due to ongoing non-compliance with this interim enforcement order, however, by consent the Tribunal made a further enforcement order on 30 September 2013 seeking to effect the removal and disposal of part of the stockpile of tyres on the land (and to limit the size of the rest), and to put in place fire control measures.
The order of 30 September 2013 was, however, itself the subject of further non-compliance, so that an enforcement order application was set down for final hearing in the Tribunal on 30 June 2014. Following that hearing, the Tribunal made a final enforcement order on 2 July 2014 (‘the enforcement order’).[5] We need not set out the particulars of the enforcement order in any detail, save to observe that it principally was intended to effect the final removal of tyres and other combustible materials from the land in stages (the final stage to be completed by 22 January 2015).
[5]Moira Shire Council v Sidebottom Group Pty Ltd & Ors [2014] VCAT 801 (Dwyer DP).
On 5 January 2015, the appellant’s father, Raymond Sidebottom, became sole director of the company.
Thereafter, on 18 February 2015, the Council’s solicitors wrote to the company advising that a certificate under s 122 of the Victorian Civil and Administrative Tribunal Act 1998 had been granted. It provided for a deadline of 4 March 2015 for full compliance with the enforcement order of 2 July 2014, failing which the enforcement order would be filed in the Supreme Court.[6] In the result, the order of 2 July 2014 was filed in the Supreme Court on 10 March 2015.
[6]So far as relevant s 122 provides:
122 Enforcement of non-monetary orders
(1) A person may enforce a non-monetary order by filing in the Supreme Court—
(a) a copy of the order certified by a presidential member or the principal registrar to be a true copy; and
(b) that person's affidavit as to the non-compliance with the order; and
(c) a certificate from a judicial member or the principal registrar stating that the order is appropriate for filing in the Supreme Court.
…
(3) On filing, the order must be taken to be an order of the Supreme Court, and may be enforced accordingly.
About two months later, on 7 May 2015, the appellant became the director and secretary of the company, his father’s appointment having been terminated.
On 20 October 2015, following a hearing before a judge of the Supreme Court directed to effecting compliance with the Tribunal’s enforcement order of 2 July 2014, the judge made orders designed to bring about compliance.[7]
[7]Moira Shire Council v Sidebottom Group Pty Ltd & Anor [2015] VSC 577 (‘Sidebottom (No 1)’).
We need not discuss the terms of further orders made by the judge on 10 March 2016 and 17 June 2016 relating to the Council’s attempts to have the appellant and the company comply with the Tribunal’s enforcement order, save to note that in June 2016 the Council filed a summons seeking the committal of the appellant for contempt (punishment of the company for contempt not being sought).
Following a hearing conducted over two days on 9 and 10 August 2016, on 15 September 2016 the judge declined to find the appellant to be in contempt.[8] Her Honour at that time was not satisfied beyond reasonable doubt that the company had the financial capacity to comply with the Court’s earlier orders. The judge thus thought it to be necessary for the parties to reformulate the enforcement order. As part of that process, on 14 December 2016, the judge accepted an undertaking from the appellant, given through his counsel in open court, that the company had the capacity to comply with the order as reformulated and that he would personally ensure its compliance.
[8]Moira Shire Council v Sidebottom Group Pty Ltd [2016] VSC 546 (‘Sidebottom (No 2)’).
So far as relevant, the orders of 14 December 2016 were as follows:
1. The [company] must remove, from the land situated at 7 and 25 Saxton Street West, Numurkah (‘the land’), and lawfully dispose:
a.by 15 April 2017, all materials located along the southern and western part of the tyre storage area on the land in the attached site plan (‘tyre storage area’) referred to as ‘A’ and marked with ‘+ signs’;
b.by 15 August 2017, all rubber materials located along the eastern and northern part of the tyre storage area referred to as ‘B’ and marked with ‘horizontal lines’;
c.by 15 December 2017, all materials located along the southern part of the tyre storage area referred to as ‘C’ and marked with ‘triangle signs’;
d.by 15 April 2018, all materials located in the tyre storage area referred to as ‘D’ and marked with ‘wavelength lines’; and
e.by 15 August 2018, all remaining materials located in the tyre storage area including, but not limited to, tyres, rubber, scrap metal and other similar waste material.
2. The removal of the materials identified in paragraph 1 of this order must commence on, or before, 15 January 2017.
…
4. Throughout the removal of the materials identified in paragraph 1 of this order:
a.all vegetation on the land within 20m of tyre stockpiled must be maintained to between 5-10cm in height;
b.no new materials forming part of the use of the land for materials recycling including, but not limited to, rubber materials must be brought on to the land; and
c.no new combustible materials must be kept within 20 m of tyre stockpiles in the tyre storage area.
The appellant’s undertaking, given through counsel, was recorded in the orders of 14 December 2016 (in ‘Other Matters’) as follows:
Mr Shanan James Sidebottom, director of the [company], undertakes that the [company] has the capacity to, and will, comply with this order, and he will personally ensure that the [company] complies with each paragraph of this order.
The exchange that took place between the judge and the appellant’s counsel, in which the undertaking was given, is as follows:
HER HONOUR: Thank you. All right. How did you want to go about the undertaking [counsel]?
COUNSEL: Your Honour, I can give the undertaking myself on instructions from Mr Sidebottom if your Honour is content with that.
HER HONOUR: I certainly am … we’re in open court, it’s on transcript.
COUNSEL: I’ll just confirm those instructions.
HER HONOUR: Thank you.
COUNSEL: Yes, your Honour. Mr Sidebottom gives that undertaking as described in the other matters of [the] consent order.
HER HONOUR: Thank you. Mr Sidebottom, I’m going to say it again. They are very serious undertakings that you give to this court through counsel.
Notwithstanding the appellant’s undertaking, however, a further year elapsed during which there was an apparent failure to comply with the reformulated order. As a result, on 8 January 2018 the Council filed a fresh summons seeking the appellant’s committal for contempt. And, as we have earlier indicated, on 22 June 2018 the judge by consent pronounced both the appellant and the company in contempt for breach of the 14 December 2016 order in the terms earlier set out.[9]
[9]See [5] above.
As will appear, there is a live issue as to whether the judge did not ‘convict’ the appellant of, and purport to punish him for, a contempt that he did not admit.
The appellant’s reasons for breaching the undertaking
At the time that the appellant gave the undertaking the subject of these proceedings, approximately 5000 tonnes of tyres remained on the land. Thereafter, it appears that between December 2016 and 8 February 2018 only 345.59 of the approximately 5000 tonnes of tyres on the land were removed (that is, a seven per cent reduction over a period of about 14 months).
The gist of the appellant’s evidence — derived from tendered affidavits and oral evidence — was that since May 2015 he has been the sole director of the company, and has also been the operations manager of a related company, Transpro Logistics Pty Ltd (‘Transpro’). Both the company and Transpro operate out of the land. His income from May 2015 has been approximately $300 per week. He has minimal assets, and lives on the land rent free as part of his role with the company and Transpro.
In an affidavit sworn on 23 April 2018 the appellant deposed:
I gave [the] undertaking on the basis of the following factors I knew to be the case at the time. Specifically:
a. The tyres would be taken to a company called Tyrecycle in Somerton for recycling and processing;
b. Tyrecycle charging $20 per tonne;
c. Transpro paying [the company] $4500 per month rent to operate out of the [land];
d. [The company’s] only income being rent from Transpro;
e. Repayment of [the company’s] loan from Mr Ken Buckingham of $390,000 (Buckingham loan), on the basis of prior arrangements being extended beyond 20 April 2017;
f. [The company] having to pay monthly interest on the Buckingham loan;
g. My personal income of $300 per week;
h. Transpro providing the logistics for the removal of the tyres because [the company] cannot pay for an external logistics company; and
i. Transpro having four trucks on the road, permitting one of the prime-movers with a b-double tautliner trailer to be used to take the tyres from Numurkah to Tyrecycle Somerton.
The undertaking was voluntarily and honestly given. However, it was given in circumstances where the [Council] would not have agreed to the revised timetable in the [22 December 2016 orders] without my personal undertaking. Had the Council not agreed to a new timetable, despite being acquitted of contempt, the [company] would have been in non-compliance of previous orders from 15 September 2016 …
Transpro, the appellant said, has five prime movers, although in December 2016 it was operating only four of those (identified as T51, T53, T54 and T55). The fifth prime mover was off the road when the appellant gave the undertaking and he did not expect it would be operational in time to assist with the removal of the tyres. Transpro had four ‘b-double’ trailers (being three ‘tautliner’ trailers and one ‘tipper’ trailer).
The appellant explained that when he gave the undertaking, it was on the basis that he intended that the tyres would be conveyed to Tyrecycle, a tyre recycling plant, in Somerton for recycling and processing. It was intended that one of the four prime-movers with a b-double tautliner trailer would be used to take the tyres from the land in Numurkah to Tyrecycle’s Somerton plant. He thought that Tyrecycle would charge $20 per tonne.
In relation to the removal of the tyres from the land, the appellant’s evidence was that he had previously taken tyres to Tyrecycle between July 2015 and January 2016 and had been charged $20 per tonne. This was on the basis of an agreement the company had with Tyrecycle to process the tyres for $20 per tonne for 600 tonnes. Only 387.04 tonnes had been sent by the company to Tyrecycle and it was the appellant’s belief that the agreement would apply to a further 212.06 tonnes. When he arranged for four loads in January 2017, the company was charged $80 per tonne. Although he received legal advice that the agreement for $20 per tonne would be enforceable, he took the view that it would not be appropriate to spend the company’s money on litigation to enforce the agreement, since there was the risk of an unfavourable outcome in litigation and the risk that it would damage the relationship with Tyrecycle.
The appellant said that four loads of tyres were taken by Transpro to Tyrecycle in tautliner trailers on 18, 20, 27 and 31 January 2017. In late January or early February 2017, he contacted Tyrecycle to discuss the price it was charging the company and he renegotiated a rate of $70 per tonne for the outstanding balance of the company’s tyres. Further loads of tyres were then sent to Tyrecycle on 1, 3, 9, 10 and 16 February 2017.
On 14 February 2017, T55 and its trailer was issued a defect notice at West Wyalong. As a result, T53 with a tautliner trailer had to be taken from the task of transporting tyres and deployed to move T55’s load. Prime mover T55 was off the road until 1 March 2017. Further, on 22 February 2017, T54 broke down in Ceduna and it only came back into operation in February 2018. Transpro’s income was reduced because of these incidents and that affected its capacity to transport tyres on the company’s behalf to Tyrecycle.
Furthermore, on 2 June 2017 Tyrecycle sent a letter to the appellant stating that it was increasing its fees to between $233 and $450 per tonne. The appellant then called Tyrecycle’s national sales manager, Clinton Habner, in early August and renegotiated the fees to $95 per tonne. The cheaper price was arrived at on the basis that he and the company would bundle the tyres prior to delivery at Tyrecycle.
The appellant produced a spreadsheet demonstrating that the company had paid $29,529.15 to Tyrecycle to process 345.69 tonnes of tyres. He deposed that had the company been charged $20 per tonne, then it would have been able to take 1476.46 tonnes to Tyrecycle. The appellant said that he expected that there might be an increase in per tonne charges to process the tyres based on inflation, but he did not expect that it would have increased as much as it did. His belief was that Tyrecycle was taking advantage of the company’s predicament. He said that he thought that there may have been a slight increase in the rate charged by Tyrecycle but never envisaged that it would quadruple.
He said that when he gave the undertaking, Transpro would pay the company $4500 per month in rent to operate out of the property, and that the company’s only income would be the rent paid by Transpro.
The appellant also said that at the time that the undertaking was given, the company had an outstanding loan secured by a mortgage, the mortgagee being Kenneth Buckingham (the ‘Buckingham loan’). Following Mr Buckingham’s death, on 29 August 2017 his executor served a Notice to Pay demanding repayment of the loan of $390,000 (plus interest and costs).
In an affidavit sworn on 12 July 2018, the appellant deposed:
I was not responsible for the tyres coming onto the [land] but I became director of the [company] in May 2015 to clean up the mess the company found itself in because of earlier mismanagement and because of that I am responsible for removal of the tyres. I regret and am sorry to the court, the [Council] and the local community that I have failed in that responsibility.
I am extremely sorry to be back in court and I have never wanted to be in this position, but I have honestly done everything that I believe possible and to the best of my ability to comply with the orders. I have the utmost respect for our country’s legal system and understand the importance of giving an undertaking in court. I would never have given it if I was not 100 per cent sure at the time I could comply with it.
In the course of cross-examination, the appellant conceded that he did not contact Tyrecycle prior to giving the undertaking to confirm the price for processing the tyres. He apologised and said that with the benefit of hindsight he should have contacted Tyrecycle. The appellant agreed that when he gave the undertaking there were approximately 5000 tonnes of tyres on the land. To date, 345.6 tonnes of tyres have been removed.
During cross-examination the appellant also agreed that he gave the undertaking to the Court based on the Transpro’s four prime movers being available, leaving little margin for error with respect to mechanical failures or the like. He agreed that he knew that in 2015 and 2016 Transpro had suffered truck breakdowns, and therefore he knew there was a real possibility of breakdowns in the future. The appellant conceded that he probably should have allowed for such contingencies and he once more apologised to the Court.
The appellant was also cross-examined about the recall of the Buckingham loan. His evidence was that he had foreseen that there would be an issue with the loan and that it would likely be called up by Mr Buckingham’s estate. He said that he received a letter of demand enclosing a writ and a statement of claim seeking repayment of the Buckingham loan. The appellant said that he instructed the company’s broker to source mortgage funding to pay out the Buckingham loan. A letter of offer from a private lender, Pexale Pty Ltd (‘Pexale’), was received on 9 October 2017 and accepted on 11 October 2017. The Pexale loan provided finance for the company and Transpro and was secured by mortgages and a personal guarantee from the appellant. In total, the loan facility was $950,000, $400,000 of which was to repay the Buckingham loan (although with interest and costs the payout figure was $412,345.21).
The judge’s reasons
The judge diligently undertook a thorough analysis of the facts. Although it is unnecessary to summarise all of the judge’s findings, it is convenient to set out some of her Honour’s more pertinent observations in moderate detail:[10]
[10]Reasons [103]–[112] (emphasis added).
103 I do not accept Mr Sidebottom’s evidence that he ‘honestly’ believed that he could comply with the undertaking at the time it was given.
104 By December 2016, Mr Sidebottom did not have had [sic] any doubt as to the seriousness of his undertaking and the possible ramifications of breaching the undertaking. Given Mr Sidebottom’s experience as Transpro’s operational manager, he knew that there was a very significant risk that one or more of Transpro’s prime movers may be off the road and unavailable to assist the company with the delivery of the tyres. Mr Sidebottom knew the full history of Transpro’s truck fleet and knew that it only had one truck at its disposal for the company. He made no effort whatsoever to ensure the terms of the agreement with Tyrecycle, made in July/August 2015, were still acceptable and available to ensure compliance with the December 2016 order and the undertaking.
105 I consider it fanciful for Mr Sidebottom to now assert that he honestly believed that he could comply with the undertaking and, flowing from that, that the company could comply with the December 2016 order. Even giving Mr Sidebottom the benefit of doubt that he was not being dishonest when he gave the undertaking, his conduct was reckless, irresponsible and demonstrated a complete disregard for the seriousness of the undertaking and the December 2016 order.
106 The scale of the company’s non-compliance with the VCAT enforcement order and the Court’s orders requiring the removal of the tyres is extremely troubling. For Mr Sidebottom to now say that he honestly believed he could comply with the undertaking, that he was naïve and that he was ‘100 per cent sure’ of compliance, must be met with scepticism if not disbelief.
107 I did not find Mr Sidebottom a credible witness. ...
108 The Buckingham loan was paid by the company with a loan it obtained from Pexale. The loan was secured on the basis of a personal guarantee by Mr Sidebottom. There is no evidence as to the particulars of this guarantee. Suffice it to say, when confronted with the notice to pay and the writ in relation to the Buckingham loan, the company was able to find funds to pay the debt. Yet, since the VCAT enforcement order of July 2014, Mr Sidebottom has maintained that the company has had ‘limited funds’ and so has been unable to comply.
109 Mr Sidebottom’s contemptuous conduct has caused a public injury. Although the Council’s objective has been to coerce compliance with the December 2016 order, there is a public interest aspect to this proceeding in that it vindicates the Court’s authority. Protecting and upholding the administration of justice requires compliance with all orders and undertakings; this is so whether or not compliance also serves individual or private interests.
110 Mr Sidebottom’s conduct amounts to a perverse refusal to accept the jurisdiction of the Court. His persistent and blatant contempt, as an officer of the company, for the Council’s rights and the Court’s authority must not be underestimated. Since 2014 to date a mere seven per cent of the tyres have been removed from the land.
111 Mr Sidebottom wants the Court to accept that, consistent with the December 2016 order, the company had the capacity to comply with the timetable. Yet he had no basis for assuming Tyrecycle would continue to charge $20 per tonne for processing the nearly 5000 tonnes of tyres still on the land. The $20 per tonne figure was based on a July 2015 agreement between the company and Tyrecycle. That agreement concerned a discrete amount of tyres and was, by December 2016, a year and a half old.
112 I am therefore satisfied beyond reasonable doubt that the contempts in this proceeding were contumacious. Given Mr Sidebottom’s experience as Transpro’s operational manager, his knowledge of the company’s financial position and its July 2015 agreement with Tyrecycle, he must have known there was no reasonable basis for giving the undertaking. His evidence was that the Council would not consent to a new timetable unless he gave the undertaking. Mr Sidebottom was therefore prepared to say and do whatever was necessary to gain more time. He knowingly gave the undertaking when there was no real prospect of compliance.
Further, with respect to the appellant’s proffered apology, the judge observed:[11]
I consider Mr Sidebottom’s apology disingenuous. He maintained until very recently that he and the company had not committed any contempt. Given his past breaches, and the fact a mere seven per cent of the tyres have been removed in four years, I do not accept that Mr Sidebottom is contrite and remorseful. He tried to minimise his culpability by blaming former officers of the company for bringing the tyres onto the land. He also tried to blame Tyrecycle by suggesting that it was taking advantage of the company’s predicament.
[11]Reasons [126] (emphasis added).
The judge also observed that the ‘penalty in this case must … serve three purposes: specific deterrence, general deterrence, and compelling obedience to, and compliance with, the Court’s orders’.[12]
[12]Reasons [133].
Submissions in this Court
The appellant sought leave to appeal against his sentence of the following grounds:
The learned sentencing judge:
1. erred in imposing a manifestly excessive sentence;
2. erred in failing to take into account the Applicant’s plea of guilty in imposing sentence;
3. mistook the facts and did not disclose a path of reasoning in declining to fine the Applicant;
4. mistook the facts concerning the ‘Buckingham Loan’ in imposing the sentence;
5. erred in considering an irrelevant matter being the Applicant’s prior conduct in imposing the sentence; and
6. denied procedural fairness to the Applicant in determining that the Applicant’s contempt was contumacious.
In our view, grounds 2, 3, 4 and 5 are probably best regarded as ‘particulars’ of ground 1. Be that as it may, as we will endeavour to make clear, we consider that the primary judge’s reasons disclose error in several respects. The errors vitiate the exercise of the sentencing discretion, such that the sentence of imprisonment imposed on the appellant must be set aside.
We pause briefly to note, however, the submissions advanced by the appellant’s counsel in the written case seeking to support the grounds of appeal. Hence, in support of the first ground, the appellant’s counsel contended that the sentence imposed was manifestly excessive in light of the appellant’s ‘early plea’, the absence of prior convictions, his ‘relative youth’ and the fact that there was no evidence that the tyres were ‘a threat to public safety’. As to the second ground, it was submitted that the judge’s reasons do not disclose that she took the ‘guilty plea’ into consideration. With respect to the third ground, it was submitted that the judge wrongly suggested that there was no evidence before the court as to the appellant’s financial position, and that the judge erred in taking into account his financial position in deciding whether to fine him. Under the cover of the fourth ground, counsel for the appellant argued that the judge had wrongly found that the appellant had foreseen that the Buckingham loan would be called up, when the evidence did not support that finding. As to the fifth ground, it was submitted that the judge erred in taking into account the appellant’s conduct prior to the undertaking, given the appellant’s earlier ‘acquittal’ of contempt. Finally, with respect to the sixth ground, it was contended that the appellant was denied procedural fairness with respect to the finding that his contempt was ‘contumacious’, in circumstances where that allegation was not put in cross-examination, and the judge in an earlier interlocutory hearing had indicated that the relevant contempt was ‘civil’ in nature.
In the respondent’s written case, counsel submitted that the sentence was not manifestly excessive; that there was no basis for concluding that the judge had not taken into account the ‘guilty plea’; that the judge did not consider the appellant’s financial position was relevant to the decision whether to impose a sentence of imprisonment; that there is no basis for concluding that the judge mischaracterised the Buckingham loan; that the judge did not deny the appellant the benefit of his previous ‘acquittal’; and that, so far as the finding is concerned that the appellant’s contempt was ‘contumacious’, the appellant was not denied procedural fairness.
We will refer below to some of the other submissions made orally in the course of the hearing in this Court.
Discussion
Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 governs the procedure to be followed in proceedings for contempt.
At the risk of repetition, the nature of the alleged contempt in the present case was the breach of an undertaking; the authorities establishing that, for the purposes of civil contempt, an undertaking is (generally speaking) the equivalent of an order of a court.[13]
[13]Morgan v State of Victoria (2008) 22 VR 237, 253–4 [91] (Nettle and Ashley JJA, Pagone AJA agreeing); Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 489 (Barwick CJ), 496 (Windeyer J).
Although a contempt proceeding under Order 75 is civil, however, proceedings seeking imprisonment or a fine for contempt ‘must realistically be seen as essentially criminal in nature’.[14] Thus, before a person is found guilty of contempt, the charge must be proven beyond reasonable doubt.[15] Indeed, the criminal nature of contempt proceedings might be thought to be reflected in the fact that appeals with respect to sentences for contempt are subject to the provisions of Part 6.3 of the Criminal Procedure Act 2009,[16] rather than the civil appellate regime.
[14]Hinch v A-G (Vic) (No 2) (1987) 164 CLR 15, 49 (Deane J); Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ) (‘Witham’).
[15]Witham, 534.
[16]Section 278 permits a person sentenced for an offence by an originating court to appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal. By s 3(1), an ‘originating court’ includes the Supreme Court in its ‘original jurisdiction’; and ‘original jurisdiction’ includes ‘a proceeding for contempt of court’. See also Allen v The Queen (2013) 36 VR 565, 569 [16] (Priest JA).
As we have said, the judge in the present case found that the appellant’s contempt was criminal. In context, the distinction between civil and criminal contempt appears to be that a civil contempt involves the breach of an undertaking in civil proceedings, whereas a criminal contempt involves a contempt in the face of the court or an interference with the course of justice. Additionally, however, disobedience or breach of an undertaking will amount to a criminal contempt ‘if it involves deliberate defiance or, as it is sometimes said, if it is contumacious’.[17] The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process,[18] although the ‘differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory’.[19]
[17]Witham, 530; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 108 (Gibbs CJ, Mason, Wilson and Deane JJ) (‘Mudginberri’).
[18]Witham, 531; Mudginberri, 106.
[19]Witham, 534.
In the present case, the judge considered the appellant’s contempt to be ‘contumacious’ (and therefore criminal). That finding of contumacy in turn appears to have been based on the allied findings that, when he gave the undertaking, the appellant ‘must have known there was no reasonable basis for giving the undertaking’ and that he ‘knowingly gave the undertaking when there was no real prospect of compliance’. The contempt so particularised, however, is not the contempt which the applicant admitted by the consent orders of 22 June 2018; that is, a failure in contravention of the undertaking he gave to the Court ‘to personally ensure’ that the company complied with the terms of the 22 December 2016 order.
We consider that the appellant’s admission extended no further than an acceptance of the fact that he had failed to ensure the company’s compliance with the relevant orders. His admission — in effect, his plead of guilty to the ‘charge’ of contempt as particularised — could not reasonably have been interpreted as an admission that he gave the undertaking realising that there was no reasonable basis for doing so, and in circumstances where he knew that there was no real prospect of compliance. Yet, as we have observed, that is contempt for which the judge punished the appellant.[20]
[20]See [6] above.
Although the contempt in this case arose in the course of a civil proceeding, since it was punishable by imprisonment, the safeguards similar to those appropriate in criminal proceedings applied. So much is clear from Doyle, where it was observed that:[21]
… a proceeding for committal may result in a very serious interference with the liberty of the subject — indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally … the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge. Some aspects of the general principle were mentioned in the judgment of Williams ACJ, Kitto and Taylor JJ in Coward v. Stapleton[22] in the following passage:
... it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard;[23] R v Foster; Ex parte Isaacs.[24] The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott.[25] The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.
Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.
[21]Doyle v The Commonwealth (1985) 156 CLR 510, 516 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) (citations as in the original).
[22](1953) 90 CLR 573, at pp 579–580.
[23](1868) LR 2 PC 106, at p. 120.
[24][1941] VLR 77, at p. 81.
[25][1909] AC 312, at p. 315.
In our view, the judge unfortunately punished the appellant for a charge of contempt that he had not been called upon to answer. We consider that the exercise of the judge’s sentencing discretion was vitiated as a result. It follows that we do not accept the contentions orally advanced by counsel for the respondent that the judge more or less used the circumstances in which the appellant gave the undertaking simply as necessary background to the alleged contravention, or that it is artificial to distinguish between the circumstances of giving the undertaking and the breach of it.
Moreover, we are also of the view that, in the circumstances of this case, the judge’s finding that the appellant’s apology was ‘disingenuous’ is, at the very least, problematic.
Acknowledging the judge’s advantage in seeing and hearing the appellant give evidence, we note that the appellant many times in the course of his evidence apologised for his failure to ensure the company’s compliance with the relevant orders. In the course of a searching cross-examination by counsel for the Council, however, it was never put to the appellant that his apology was other than genuine and honest. And, so far as we can see, the judge did not perspicuously raise the possibility that she might make an adverse finding against the appellant in that regard. Counsel for the respondent submitted orally that, in context, the possibility of such a finding must have been obvious. We do not agree. Given the nature of proceedings — and the safeguards that should ordinarily attend a criminal contempt — we are of the view that procedural fairness dictated that, had the judge thought to discount the appellant’s apology on the basis that it was lacking in bona fides, that possibility should distinctly have been raised with the appellant so that he could address it.
For these reasons, we considered that ground 6 was made out. In light of the two critical findings in the judge’s reasons to which we have referred, the judge’s sentence cannot be permitted to stand. Given the fact that the genuineness of the appellant’s apology must to a significant extent inform the exercise of the sentencing discretion; and further given that any assessment of the apology’s genuineness must to some extent depend upon an assessment of the appellant’s credit — a difficult exercise to carry out based solely on the papers — we considered that the most appropriate disposition of the appeal was to remit the matter for rehearing and determination by another judge. We wish to make clear, however, that although in the circumstances we were relieved of the necessity of considering the complaint that the sentence was manifestly excessive, we consider that the sentence imposed — even absent any significantly mitigating features — must at the very least be regarded as being at the upper extremity of the appropriate range for the contempt that the appellant admitted.[26]
[26]See and compare R v Vasiliou (No 2) [2012] VSC 242.
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