Strathfield Municipal Council v Malass

[2022] NSWLEC 132

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Strathfield Municipal Council v Malass [2022] NSWLEC 132

Hearing dates:

12 October 2022

Date of orders:

02 November 2022

Decision date:

02 November 2022

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [99]

Catchwords:

CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Multiple Counts — Carrying out development work contrary to Court injunction — Failure to provide access to property — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed for each count — Costs ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, ss 8.18, 9.34

Cases Cited:

Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Burwood Council v Ruan [2008] NSWLEC 167

Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340

Group Pty Ltd, Re v Kazal (No 4) [2017] FCA 1084

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Malass v Strathfield Municipal Council [2020] NSWLEC 168

Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Malass v Strathfield Municipal Council [2022] NSWLEC 131

Mirius Australia Pty Ltd v Gage [2018] NSWSC 35

Palerang Council v Banfield (No 2) [2012] NSWLEC 158

Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210

Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14

Strathfield Municipal Council v Malass [2021] NSWLEC 112

Sutherland Shire Council v Perdikaris [2020] NSWLEC 111

Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Wood v Staunton (No 5) (1996) 86 A Crim R 183

Category:

Sentence

Parties:

Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)

Representation:

Counsel:
G Farland (Applicant)
R Lancaster SC with T C Spohr (Respondent)

Solicitors:
Bartier Perry Pty Limited (Applicant)
Abbas & Co Lawyers (Respondent)

File Number(s):

2021/00220120

Publication restriction:

Nil

Judgment

1. By notice of motion filed 16 December 2021 in these Class 4 civil enforcement proceedings (commenced on 2 August 2021), Strathfield Municipal Council (‘Council’) seeks orders that Sarah Malass be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders of the Court made by Pain J on 11 August 2021 and 19 October 2021, and that she be punished by way of conviction and fine.

2. Sarah Malass pleaded guilty to the charges on 1 August 2022, and a hearing on penalty proceeded on 12 October 2022. The hearing proceeded concurrently with another hearing on penalty in relation to a separate charge of contempt of this Court relating to earlier orders of the Court made by Preston CJ of LEC on 27 November 2020 in separate (but not unrelated) Class 1 appeal proceedings to which Sarah Malass also pleaded guilty: Malass v Strathfield Municipal Council [2022] NSWLEC 131.

3. I find that Sarah Malass has committed wilful contempt of this Court, as charged, that this contempt is objectively serious, and I consider it appropriate to impose a fine in relation to each of the counts comprising the contempt charge in these Class 4 proceedings. My reasons follow.

Background

4. Sarah Malass is the registered proprietor of land known as 27 Boden Avenue, Strathfield and identified as Lot 62 in DP 15955 (‘Property’).

5. On 22 November 2017, Council granted development consent for the demolition of existing structures and construction of a new two-storey dwelling with basement car parking, and an in-ground swimming pool at the Property (‘Consent’). A week later, Sarah Malass purchased the Property.

6. In early 2019 construction commenced on the Property purportedly in compliance with a construction certificate issued on 30 July 2018 (‘Construction Certificate’) by a private certifier (who was also appointed as the principal certifying authority).

7. On 14 September 2020, following complaints by neighbours as well as action by the principal certifying authority (including the issuance of a notice of non-compliance with approved plans), a Council officer inspected the Property and observed non-compliant development on various levels of the dwelling which was then under construction.

8. On 14 September 2020, Council issued a Development Control Order (‘DCO’) (otherwise known as a stop work order) pursuant to s 9.34(1)(a) and Item 2 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) to Sarah Malass, requiring the immediate cessation of all development work on the Property.

9. The DCO noted the following “Reasons”:

“1.   Council received concerns from neighbours alleging potential unauthorised work on the premises at 27 Boden Avenue, Strathfield.

2.   Onsite inspection conducted by Council’s Officer on 14/09/2020 revealed extensive amount of unauthorised development conducted on site. Amongst others, below are known non-compliant works during inspection:

-   Non-compliant underground basement; extensive additional unauthorised basement floor has been constructed;

-   Non-compliant ground level layout; extensive unauthorised development work compared to approved plans;

-   Non-compliant first floor level layout; extensive unauthorised development work compared to approved plans;

3.   A search of Council records confirmed development constructed on the site differs significantly from what has been approved under DA2017/091.”

The Class 1 appeal proceedings

10. On 9 October 2020, Sarah Malass commenced Class 1 appeal proceedings against the DCO under s 8.18(1) of the EPA Act (‘DCO appeal proceedings’) and on 29 October 2020, Sarah Malass applied by notice of motion for the DCO to be stayed until disposal of the DCO appeal proceedings. That motion proceeded to hearing before Preston J and, on 27 November 2020, the Chief Judge of this Court made orders (in Malass v Strathfield Municipal Council [2020] NSWLEC 168) which partially stayed the operation of the DCO “to avoid future damage to the building” on the condition that “no other works be carried out”, and that Sarah Malass actively pursue development consent and building information certificate applications amongst other things.

11. The partial stay only allowed for the installation of a front door; completion of skylight flashings to achieve waterproofing; installation of glass and seals in window and sliding door frames already in situ to achieve waterproofing; installation of a temporary hoarding to secure the entrance to the car parking garage; and the removal of work equipment from the Property.

The DCO appeal proceedings, separate building information certificate, and the DA proceedings

12. On 11 December 2020, Sarah Malass lodged an application for a building information certificate with Council seeking to regularise “unauthorised works intending to be retained” at the Property (‘BIC application’).

13. On 13 January 2021, Sarah Malass lodged Development Application No 2020/239/1 (‘DA’) with Council seeking development consent for the use of the building which by then had been substantially erected on the Property for the purposes of a dwelling house, as well as for alterations and additions.

14. Council refused the DA on 5 March 2021 and refused the BIC application on 9 March 2021.

15. On 11 March 2021, Sarah Malass commenced two (further) Class 1 appeal proceedings appealing against each of Council’s refusal of the DA (LEC proceedings 2021/00069569) (‘DA proceedings’), and Council’s refusal of the BIC application (LEC proceedings 2021/00069575) (‘BIC proceedings’).

16. On 12 May 2022, Senior Commissioner Dixon, after a four-day hearing, dismissed each of the three Class 1 appeals (the DCO appeal proceedings, the BIC proceedings, and the DA proceedings): Malass v Strathfield Municipal Council [2022] NSWLEC 1160.

Council inspections subsequent to the orders made on 27 November 2020

17. On 1 February 2021, Council officers conducted an external inspection of the Property and, although they were denied access to the dwelling, observed works, including the installation of vertical timber slats on the front façade, which had not been undertaken on 16 December 2020 (when an earlier inspection had been conducted).

18. On 4 February 2021, 18 March 2021, 27 March 2021, 30 March 2021, 15 June 2021 and 26 June 2021, various Council officers conducted further inspections of the Property and observed further building and construction activity being undertaken, including a truck pumping water; a tiling van; the unloading of building materials; an excavator; and other works including that internal ceiling panels had been installed.

19. On 15 July 2021, Council officers, acting pursuant to orders for access made by Pepper J in the DCO appeal proceedings, conducted a further inspection of the Property and observed that development work continued to be undertaken in contravention of the Court’s orders made on 27 November 2020 by Preston J in the Class 1 appeal proceedings (noted at [10] above). The non-compliance with these orders is the subject of Strathfield Municipal Council v Malass [2022] NSWLEC 131.

The Class 4 proceedings

20. As a result of the above, on 2 August 2021, Council commenced these Class 4 proceedings seeking, amongst other things, a declaration that Sarah Malass had carried out works not in accordance with the Consent (and the Construction Certificate), and an order restraining Sarah Malass from using or carrying out works at the Property except in accordance with the Consent and the Construction Certificate.

The orders made on 11 August 2021

21. By notice of motion dated 4 August 2021 filed in these Class 4 proceedings, Council sought an interlocutory injunction that Sarah Malass immediately cease all works at the Property.

22. On 11 August 2021, Pain J made interlocutory orders granting injunctive relief, requiring that all works cease at the Property until the finalisation of these Class 4 proceedings (‘August Orders’).

23. The relevant order was:

“1. The Respondent immediately cease all works at Lot 62 in DP 15955 otherwise known as 27 Boden Street Strathfield and for the injunction to remain until finalisation of these proceedings.”

24. The Class 4 proceedings were made returnable before the Registrar within seven days after the determination of the three Class 1 appeals (being the DCO appeal proceedings, the BIC proceedings, and the DA proceedings) which, as noted earlier in this judgment (at [16] above), were each later dismissed by Senior Commissioner Dixon on 12 May 2022.

Council inspections subsequent to the orders made on 11 August 2021

25. On 19 September 2021, 24 September 2021, 29 September 2021 and 11 October 2021, Council officers conducted further inspections of the Property and observed works being undertaken and the utilisation of building materials. On 7 October 2021, Ms Julide Ayas (a solicitor then in the employ of Council) had discussions with neighbours.

The orders made on 19 October 2021

26. By way of further notice of motion dated 22 September 2021, Council sought an order pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) allowing its officers to inspect all areas of the Property. The order was opposed by Sarah Malass.

27. On 19 October 2021, Pain J made orders pursuant to r 23.8(1) of the UCPR (‘October Orders’) granting Council officers access to the Property on 22 October 2021 to conduct an inspection of all areas of the Property and to take videos and photographs for the purpose of identifying the current state of the Property given that Council’s evidence suggested that works were being undertaken at the Property in breach of the August Orders and the DCO: Strathfield Municipal Council v Malass [2021] NSWLEC 112 at [27]-[28] (Pain J).

28. The relevant orders (at [36]) were:

“(1) Pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council are granted access to 27 Boden Avenue Strathfield from 10am on Friday 22 October 2021 for the purposes of an inspection to all areas of the property.

(2)   The persons granted access in accordance with Order 1 have permission to take videos and photographs during the inspection.”

Council inspections subsequent to the orders made on 19 October 2021

29. On 22 October 2021, Bradley Ian Pope, a Council officer, and Brett Daintry, Council’s external town planner, conducted an inspection of the Property, however, Mr Pope and Mr Daintry were not given access to all areas of the Property as required by the October Orders because access to the first floor of the Property via the ground floor staircase was blocked off by plywood panels. Despite this, Mr Pope observed that a range of additional works had been undertaken since his earlier internal inspection on 15 July 2021.

30. On 8 November 2021, the hearing of all three Class 1 appeal proceedings commenced (before Senior Commissioner Dixon) with an onsite inspection at the Property at which Council officers observed that additional development work had been undertaken at the Property.

31. Council officers conducted further inspections on 10 November 2021 and 14 November 2021, and observed workers carrying out electrical works, and emptying material into a skip bin in the front yard of the Property.

The contempt proceedings

32. By notice of motion filed on 16 December 2021, Council commenced the present contempt proceedings relating to Sarah Malass’ disobedience and failure to comply with the separate orders made by Pain J on 11 August 2021 and 19 October 2021 in the above circumstances.

33. Council seeks orders that Sarah Malass is guilty of contempt of this Court for disobeying or otherwise failing to comply with the August Orders and the October Orders. On 28 July 2022, Council filed an amended statement of charge providing particulars of the charges.

34. The amended statement of charge provided:

“1.   Sarah Malass is guilty of contempt of this Court for disobeying or otherwise failing to comply with Order 1 of the Court’s orders made 11 August 2021 in these proceedings, being annexure “A” (August 2021 Orders).

2.   Sarah Malass is guilty of contempt of this Court for disobeying or otherwise failing to comply with Order 1 of the Court’s orders made 19 October 2021 in these proceedings, being annexure “B” (October 2021 Orders).”

35. The amended statement of charge included as Annexure “C” the following “Table of work carried out” in contempt of the August Orders:

"Date Observed

Work carried out

19 SEP 2021

• skip bin in front yard filled to rim with building materials

24 SEP 2021

• worker wearing orange high visibility singlet holding two buckets of construction materials walk out the front door and then back in

11 OCT 2021

• worker exit the Property with extension cord in his hand

22 OCT 2021

• the north-eastern portion of the boundary fence had been constructed;

• temporary protective material removed from the laundry and timber plywood installed in doorway leading from the laundry room to the pump room;

• installation of test cladding to the wall to the left of the stairway leading from the basement to the ground floor;

• doorframe installed leading to the storeroom;

• installation of workers bench and parquetry in cinema room;

• parquetry and door frames assembled in the middle of the lounge room and gym;

• additional plumbing works in the bathroom in basement and temporary protective material removed from the floor;

• bathtub placed in the steam room in basement;

• ground floor ceiling had been lined and no longer had cabling hanging down;

• cabinets and shelving had been assembled and stored on the ground floor;

• floor to ceiling cupboard installed on the ground floor;

• marble installed to fire place on ground floor;

• outdoor living and dining area and rear yard deck had been concreted and rendered;

• retractable ceiling installed over staircase leading from basement to ground floor;

• swimming pool and spa in rear yard had been rendered, and pipes penetrating from spa had been cut back flush to render;

• installation of cupboards, plumbing and electrical work in butlers pantry;

• installation of new garage door;

• installation of stone feature wall against existing wall in front yard, and construction of new driveway all with attachment of stone façade; and

• installation of new fence adjoining property to south replacing the Colourbond fence.

8 NOV 2021

• finished timber floors across both ground and first floor level;

• kitchen cabinetry including built in pantry;

• internal fire place in the living area;

• retractable roof on ground floor;

• enclosure leading down to the basement level;

• wardrobes within individual bedrooms on first floor level; and

• bathroom ensuite tiles within bedrooms.

10 NOV 2021

• three workers outside the Property who advised they were attending to carry out electrical works

14 NOV 2021

• worker emptying a bucket into the skip bin in the front yard of the Property

17 FEB 2022

• worker cutting up materials with a power tool in rear yard of Property"

36. The amended statement of charge also provided the following:

“10.   Sarah Malass has also failed to provide access to all areas of the Property, in particular the first floor level, in contempt of order 1 of the Court’s orders made 19 October 2021 in these proceedings, being the October 2021 Orders.

11.   On 22 October 2021 Mr Bradley Ian Pope and Mr Brett Daintry was denied access to the first floor during its inspection, as access to the first floor via the ground floor staircase was blocked off by plywood panels.”

Council inspections subsequent to the commencement of the contempt proceedings

37. On 12 January 2022, 3 February 2022, 7 February 2022, 8 February 2022, 17 February 2022, 1 March 2022, 6 May 2022, 9 May 2022, 10 May 2022 and 2 June 2022, Council officers conducted inspections of the Property and observed workers entering the Property; the carrying out of works at the Property; building materials in situ and later removed from the Property; and a skip bin with changing levels of building material waste.

38. On 13 June 2022, 17 June 2022 and 18 June 2022, Council officers conducted further inspections of the Property and observed several vehicles associated with construction parked on the street in front of the Property; workers standing in front of the Property; and workers operating a small excavator and a shovel on the Property.

39. On 1 August 2022, Sarah Malass entered pleas of guilty to both charges.

40. On 25 August 2022, Mr Pope inspected the Property along with Mr Adrian Guy (a solicitor in the employ of Council’s solicitors), Mr Rabi Malass (the husband of Sarah Malass) and Mr Kim (Sarah Malass’ solicitor at that time) and, although they were denied access to parts of the Property (the first floor bedrooms, the western area of the basement and the rear area), they identified that various works had been conducted at the Property since Mr Pope’s inspection on 22 October 2021.

41. On 12 September 2022, Mr Pope again inspected the Property along with other Council officers and Mr Malass, to identify if any works had been undertaken in the first floor bedrooms, western area of the basement and the rear area since Mr Pope’s inspection on 22 October 2021, and identified that further works had been undertaken at the Property.

Evidence

Council’s evidence

42. Council marshalled extensive documentary and affidavit evidence, including records of inspections and observations by a number of Council officers as well as extensive photographs of the internal and external areas of the Property. Council read the following affidavits:

1. Affidavits of Bradley Ian Pope, Manager Compliance and Regulatory Services for Council, sworn 15 December 2021 and 15 September 2022;

2. Affidavit of Julide Ayas, a solicitor in the employ of Council’s solicitors, sworn 15 December 2021;

3. Affidavit of Terrence Han Rong Wong, a Development Compliance Officer for Council, sworn 14 December 2021;

4. Affidavits of Andrew Francesco Galante, a Regulatory Officer – Ranger in the employ of Council, sworn 16 December 2021, 1 April 2022 and 14 July 2022;

5. Affidavits of Almir De Barros Teixeira Junior, a Regulatory Officer – Ranger in the employ of the Council, sworn 31 March 2022 and 21 July 2022;

6. Affidavit of David Grant Marks, a Regulatory Officer – Ranger in the employ of Council, sworn 7 July 2022;

7. Affidavit of Rafaat Alameddine, a Regulatory Officer – Ranger in the employ of Council, affirmed 1 July 2022; and

8. Affidavit of Adrian Peter Guy, a solicitor in the employ of Council’s solicitors, affirmed 26 July 2022.

43. As the majority of the evidence relied upon by Council relates to the works “carried out” in contempt of the August Orders (being the first count of contempt) detailed in the table annexed to the amended statement of charge (noted at [35] above), I will briefly summarise the evidence of Mr Galante, Mr Pope, Mr Wong and Mr Junior with reference to that table conscious that much of this evidence is already summarised in the above background. I do not describe the detailed photographic evidence.

44. Mr Galante deposes that he attended the Property and observed: on 19 September 2021, that the skip bin in the front yard of the Property was filled with building materials; on 24 September 2021, a male wearing an orange high visibility singlet exiting the front door with buckets filled with construction materials; and on 11 October 2021, one male (with an extension cord in hand) who appeared to be a contractor and Mr Malass exit the Property.

45. Mr Pope deposes that he attended the Property on 22 October 2021 and observed that since his previous inspection on 15 July 2021, “additional works” had been undertaken comprising the works listed aside “22 OCT 2021” in the table at [35] above. This was in addition to work involving the tidying and sorting of electrical cabling in the basement storage room and the replacement of temporary sheeting with new sheeting from the stairway leading from the basement to the ground floor.

46. Mr Wong deposes that he attended the Property on 8 November 2021 for an onsite inspection as part of the hearing of the three Class 1 appeal proceedings before Senior Commissioner Dixon and observed “further unauthorised works”, being those listed aside “8 NOV 2021” in the table at [35] above.

47. Mr Galante further deposes that he again attended the Property on 10 November 2021, and observed three men who appeared to be contractors outside the Property, who identified themselves as undertaking electrical work “to get the lift up and running and other works so that it is readily available for Council’s next inspection”; and on 14 November 2021, observed a young male who appeared to be a contractor emptying a bucket into the skip bin, as well as a male who appeared to be a contractor wearing orange high visibility clothing exit the front door of the Property.

48. Mr Junior deposes that he attended the Property on 17 February 2022, and observed that the worksite at the Property was open; that three palettes of “materials” (which had been observed on the driveway during an earlier inspection on 7 February 2022) had been removed from the driveway; the skip bin was “less full” than observed at an earlier inspection on 8 February 2022; three workers were at the rear of the worksite; and workers were cutting up materials and operating power tools.

49. In relation to the second count of contempt (of the October Orders), Mr Pope deposes that at the inspection of the Property on 22 October 2021, Council officers (including himself) were unable to access the first floor of the Property because the ground floor staircase was blocked off by plywood panels.

Sarah Malass’ evidence

50. Sarah Malass read her affidavit sworn 10 October 2022, the detail of which I consider later in this judgment.

Consideration

Principles regarding the nature of contempt and imposition of penalty

51. This is a case of civil contempt. While there is a distinction between civil contempt and criminal contempt, the distinction is largely illusory because both require the charge to be proved beyond reasonable doubt and the usual outcome is punishment: Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35 at [23]. Simply stated, a civil contempt involves disobedience of a court order in civil proceedings and a criminal contempt involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525 at 530, 538, 539; [1995] HCA 3 (‘Witham v Holloway’). The purpose of the law of civil contempt is to compel obedience rather than punish disobedience which, by contrast, is the domain of criminal contempt: Group Pty Ltd, Re v Kazal (No 4) [2017] FCA 1084 at [73].

52. There is also a distinction between a technical and non-technical contempt and between wilful and contumacious contempt, which differentiates between conduct which, although constituting contempt, does not justify any punitive sanction, and conduct which does: Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. Wilful contempt is where the disobedience is more than casual, accidental or unintentional, but is not contumacious.

53. While both wilful and contumacious contempt involve intentional non-compliance with a court order, contumacious contempt is of larger gravity and renders criminal what would otherwise be civil contempt, because it involves conscious defiance of a court’s order and its authority: Witham v Holloway at 538-539. Council does not submit that the contempt the subject of this judgment is contumacious.

54. Non-compliance with an order or a judgment of a court necessarily constitutes an interference with the administration of justice (Witham v Holloway at 533-534), and any punishment must therefore show that obedience to a court’s order is important and should reflect its gravity.

55. The underlying rationale of the exercise of a court’s power to punish for contempt is to protect the effective administration of justice by demonstrating that a court’s orders will be enforced: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 (‘Kazal v Thunder’) at [97]; Mirius Australia Pty Ltd v Gage [2018] NSWSC 35 at [7], [18] (‘Mirius’).

56. Although there are no specifically identified matters that must be taken into account in sentencing for contempt, I have considered (but do not recite) the ten “factors” earlier identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, and in doing so I am conscious of (and respectfully adopt) the following summary of Ward CJ in Equity in Mirius at [8]:

“In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 (an appeal from which was dismissed by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155), Barrett J, as his Honour then was, noted the following as being matters relevant when sentencing for contempt (see [26]-[27]): the seriousness of the contempt proved; the contemnor’s culpability; the reason or motive for the contempt; whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor’s personal circumstances; the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct. This was referred to with apparent approval by the Court of Appeal (Tobias JA at [129]-[130], [137], [141], Basten JA agreeing at [181], Campbell JA agreeing) and by the Full Court of the Federal Court in Kazal (at [102]), the Court there noting that it was not an exhaustive list of potentially relevant matters.”

57. These factors were considered appropriate in the context of punishment in relation to civil contempt in: Kazal v Thunder at [102] and have also been applied by this Court in: Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [47]; Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [36]; Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 (‘Balmain Rentals’) at [36]-[40].

58. As a number of the factors noted above overlap, I have incorporated them (and the respective submissions made) in the following consideration.

59. While there had earlier been some debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to civil contempt proceedings, the present view is that despite there being some “overlap”, the principles developed to guide the discretion of a sentencing judge in criminal proceedings do not apply without qualification to punishment for contempt: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [38] (Bell P), [66] (McCallum JA); Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58] (Basten JA).

Seriousness

60. The seriousness of the contempt(s) is an important matter in determining the appropriate penalty in relation to each charge. This involves consideration of the nature of the contempt.

61. Council submits that Sarah Malass’ conduct was the result of intentional acts in relation to two separate orders of the Court which, although not deliberate acts of defiance, at least in relation to the August Orders, allowed works (being construction) on the Property to continue despite the August Orders and that such conduct continued after these present contempt proceedings were commenced on 16 December 2021.

62. In relation to those works, Council points to the extensive evidence of observations made by Council officers and detailed photographic evidence (including discrete photographic evidence which reflects the extent of works that were undertaken after (and in breach of) the August Orders).

63. In answer to Sarah Malass’ objections to photographic and other material marshalled after February 2022 (including more recent photographs and observations), Council submits that given the particulars (and Council’s evidence) that were the subject of the pleas of guilty, the Court would take into account the extensive further work undertaken after these present contempt proceedings were commenced as an example either of aggravation or at least of the fact that the contempt (in relation to the August Orders) has not been purged.

64. Council further contends that because Sarah Malass had an awareness of the consequences of her breaches (given the background circumstances), the conduct in relation to both the August Orders and the October Orders (which Council accepts should be characterised separately), were each in the moderate to high range of seriousness.

65. Council submits that the suggestion in Sarah Malass’ affidavit that there was no intention to breach the orders must be considered in light of the facts that each breach to which Sarah Malass has pleaded guilty was wilful in terms of what was achieved and in the context of Sarah Malass’ personal involvement in various Court proceedings. That involvement cannot sit comfortably with the submission that there was some form of “inadvertence”.

66. Sarah Malass submits that, given her affidavit (which was not contested), the breach of the August Orders and the October Orders should be characterised separately. Sarah Malass contends that the breach of the August Orders reflects a low level of culpability because her conduct should be seen as a “failure to exercise control over development” on the Property as the registered proprietor in circumstances where, as her evidence provides, she had a limited understanding of the Consent and the consistency, or otherwise, of the building works being undertaken the subject of the Consent, and taking into account her “mental state” at the relevant time.

67. Sarah Malass submits that the Court would further conclude that she should not be understood as someone who has flouted the authority of the Court or wilfully breached the orders and, in these circumstances, each breach amounts to a low level of culpability.

68. Sarah Malass further submits that the breach of the October Orders simply amounted to the first floor being inaccessible during an inspection by Council officers, that there is no evidence that Sarah Malass intentionally blocked off access (and suggests that access could have been blocked for the purpose of general safety), and that at most it indicated she did not actively take steps to enable access. Whilst not intending to traverse the plea of guilty, it is submitted that the breach of the October Orders is a “very low-level breach”.

69. I have considered the evidence, in particular the evidence up until February 2022 (noting there was concern expressed about the use of photographic and other observational evidence after that date) which clearly shows that there was significant building activity untaken in breach of the August Orders. Having closely considered the photographic material (particularly up to December 2021) and the evidence that goes to each of the particulars the subject of the amended statement of charge, in circumstances where Council’s evidence is uncontested, and where (in my view) there has been little explanation for the conduct, I am satisfied beyond reasonable doubt that significant work was undertaken in breach of Order (1) of the August Orders.

70. To the extent that the photographic and other evidence depicting the further work being undertaken after the commencement of these present contempt proceedings was received on the limited basis that none of the earlier work was “undone”, the evidence before the Court is that extensive works have proceeded to completion including detailed fit-out and it is accepted that Sarah Malass (and her family) now reside in the completed dwelling.

71. Even taking into account Sarah Malass’ evidence, I do not accept that Sarah Malass’ conduct has been properly explained. While I accept that she was relatively unsophisticated in relation to business and building matters, and that she deposes that she had “issues with anxiety”, and that there were concerns that she and her family may have contracted COVID-19, I do not consider her evidence in relation to her mental health (which although uncontested, was that, at her husband’s suggestion, she did “speak to a doctor” and, thereafter, she “spoke to a psychologist”), proffers any appropriate reason or excuse for her conduct in the circumstances. I have considered her involvement, and, on the evidence, I do not consider that there was a low level of moral culpability.

72. I also take into account matters in relation to Sarah Malass’ “home life” as submitted on her behalf, however, again, it is clear that Sarah Malass commenced a number of separate Class 1 appeal proceedings in this Court (as noted at [10]-[16] above); appealed the DCO issued on 14 September 2020; applied for a stay of that DCO by notice of motion filed 29 October 2020 in which she had successfully argued, through her legal representative, a partial stay of the DCO.

73. Accepting that she has been a consistent and active party – in the sense that at the time of both the August Orders and the October Orders, she, at all relevant times, had experienced legal representation in the conduct of a number of different (not unsophisticated) proceedings before the Court (all relating to non-compliant development undertaken on the Property), including the initial hearing in relation to the Class 4 proceedings (including various other attendances and proceedings before Preston J, Pain J and Pepper J) – I am satisfied beyond reasonable doubt that Sarah Malass had a proper awareness of the precise nature and extent of each of the August Orders and the October Orders made by Pain J and the consequence of non-compliance with those orders. I do not accept the submission that her understanding of the status of the proceedings and the Court orders was “limited”, and I accept Council’s submission that Sarah Malass’ conduct was wilful, rather than inadvertent or technical.

74. Sarah Malass is the owner of the Property. Her conduct cannot be characterised as some inadvertent breach. I do not accept that the conduct in relation to either the August Orders or the October Orders could properly be characterised at a “very low level of culpability”. Even if it was seen as a “failure to exercise control” as she submits, I find both breaches, in all circumstances, are of moderate seriousness with the breach of the October Orders less serious than the breach of the August Orders.

75. I find that the breach of the August Orders was wilful and indeed borders on a deliberate flouting – although I am conscious that Council has not submitted that the breach is contumacious. I also find that the breach of the October Orders was a breach which at the time prevented Council officers from investigating breaches (for example, at least of the August Orders) in a manner that has not been convincingly explained by the evidence she has given, nor by the submission that access could have been blocked for “safety” reasons. I am conscious of the fact that the October Orders were made after a contested hearing before Pain J in circumstances where Sarah Malass actively opposed the making of the orders for access; and, as noted above, I find that her involvement with a number of separate proceedings together with the significance of all the works that continued after the August Orders, supports a finding of wilful contempt rather than ignorance on Sarah Malass’ part.

76. Furthermore, as Council submits and Sarah Malass accepts, I find that Sarah Malass, as the owner of the Property “allowed events to occur to put her in breach of the orders”, and I repeat that I do not accept that either of the breaches was technical or inadvertent and, in relation to the August Orders, the breach continued for some period of time. As I have found above, and by primary reference to the documents referred to in the “comparative table of evidence”, there was significant work done in breach of the August Orders.

Benefit/financial gain

77. In oral submissions it was submitted on behalf of Council that the conduct the subject of both the contempt of the August Orders and the contempt of the October Orders “led to the home being able to be completed and lived in” by Sarah Malass and her family and that the evidence marshalled by Council relates to the building works continuing even after these present contempt proceedings were commenced with “a strong impression of benefit” to Sarah Malass which followed from the “contemptuous work”. The evidence to that effect (that the work had progressed to the completion of the dwelling) is relevant to Council's position and relevant to the Court in imposing penalty.

78. In circumstances where there is no evidence that Sarah Malass received any direct financial gain from the breaches of the August Orders or October Orders, while I accept that there may have been some benefit in that Sarah Malass and her family now have a significant home capable of being lived in from her failure to comply with the orders (at least in regard to the progression of the works contrary to the August Orders at a time when they should not have been), I do not place significant weight on this factor in imposing penalty.

Deterrence and denunciation

79. I consider that in determining punishment, it is necessary to impose a penalty that denounces each count of contempt as well as taking into account the need for general and specific deterrence.

79. In relation to each breach, I find that there is need for general deterrence in relation to compliance with court orders to ensure that those who may otherwise be inclined to flout the authority of the Court are not tempted to do so and, therefore, to maintain the efficacy of the Court and the administration of justice. Furthermore, a breach of court orders in relation to planning law has the potential to harm the regulatory system.

80. In these circumstances, I consider that there is also a need for specific deterrence in relation to Sarah Malass, due to the fact that there are, in this matter, two separate offences regarding non-compliance with orders of the Court.

Personal and other circumstances

82. Because there is no evidence to the contrary, I accept that subject to the present matters, Sarah Malass is a woman of prior good character.

83. I take into account that Sarah Malass is 34 years of age and has not been before the Court for any other reason and, as I have noted, she would otherwise be regarded as a woman of good character. Although it was submitted on her behalf that she does not come from a privileged background, I do not see this as a mitigating factor. As I have found above, I find that Sarah Malass had an appropriate appreciation of each of the August Orders and the October Orders.

84. As noted above, I have also taken into account her own evidence that her “mental state” at and around the relevant times may have contributed to her giving insufficient attention to matters.

85. I also take into account that, at the date of the hearing, Sarah Malass offered an apology for her conduct. The apology was offered 10 months after the filing of the notice of motion initiating these present contempt proceedings, although I am informed that substituted service was not effected upon her until February 2022.

86. There was a dispute as to whether or not the pleas of guilty were entered at the first available opportunity. Sarah Malass submits that the pleas were offered (on 1 August 2022) when the particulars had been finalised in the amended statement of charge (on 28 July 2022). Council submits that the detailed evidence, which accompanied the notice of motion, articulated with precision the conduct complained of and this material had been made available to Sarah Malass some significant time before the pleas of guilty were entered.

87. In the circumstances, I accept that there has been some utilitarian value in the entry of the pleas (at least to the extent that it reduced the time that may otherwise have been required for a contested hearing on liability) and I take this into account.

Capacity to pay

88. While I note Sarah Malass’ evidence that she is not “working at the moment”, and that her husband's plumbing business has suffered a “downturn”, I find that there is no specific evidence of Sarah Malass’ means to pay any penalty. Despite this, I accept Council’s submission that Sarah Malass owns a property with a substantial new three-level residence and, as such, I am not prepared to place any significant weight upon a suggestion that Sarah Malass lacks the means to pay a fine.

Comparable cases

89. Although the ascertainment of the existence of a general pattern in the imposition of penalties for contempt offences is appropriate, care must be taken because each case is different. I have had regard to a number of cases in this Court for the purpose of considering comparative sentences and I note that in Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 at [38]-[41], Biscoe J noted that, having undertaken a survey of cases (although now 9 years ago), the range of penalties imposed by this Court in cases of wilful contempt have generally ranged from $7,500 to $50,000.

90. I have also had regard to a number of cases in this Court to which I have been referred, including: Balmain Rentals; Burwood Council v Ruan [2008] NSWLEC 167; Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210; Palerang Council v Banfield (No 2) [2012] NSWLEC 158 (and the cases referred to in those cases). In considering these cases, I am aware that consistency in sentencing relates to the application of relevant legal principles, and not some numerical or mathematical equivalence: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [18].

91. Overall, taking into account the circumstances of each count, and noting that there is some overlap in relevant factual circumstances, and although each of the breaches in these proceedings occurred in the context of the unlawful continuance of building works undertaken on the Property, such that the breach of the October Orders has some relationship with the breach of the August Orders, I consider that each contempt is a discrete breach of the Court’s orders and I do not find it appropriate to characterise them as relating to ‘a course of conduct’.

92. Taking into account the factors considered above, including the objective factors of the breaches and subjective factors of Sarah Malass, including her apology, guilty pleas, and some expression of remorse, my view that any breach of the Court’s orders is a serious matter, and having considered various penalties imposed by this Court – I consider that the appropriate penalty is the imposition of a fine in the sum of $20,000 in relation to the contempt of the August Orders offence, and a fine in the sum of $7,500 in relation to the contempt of the October Orders offence.

93. I note that I have given some consideration to the principle of totality, and the fact that, to some extent, both contempts arise in not dissimilar circumstances, however, as per my comments above, given the discrete nature of each count of contempt, I consider that the fines I have determined are appropriate.

Costs

94. Council seeks an order that its costs be paid on an indemnity basis, which it submits is the usual practice in contempt proceedings, and that this practice should be adopted because, first, Sarah Malass did not lead evidence or enter pleas of guilty until 1 August 2022; second, the contempt, at least of the August Orders, was for some time ongoing; and third, Council has prepared extensive affidavit evidence.

95. Sarah Malass submits that the Court should not award indemnity costs because the evidence marshalled by Council in these present contempt proceedings reflects or duplicates the evidence brought in the (not unrelated) Class 1 contempt proceedings which were heard concurrently with the present hearing on penalty. In those circumstances, Sarah Malass submits not only should the Court not award indemnity costs, the Court would not award the whole of Council’s costs even on an ordinary basis because a vast amount of Council’s affidavit material addresses matters outside the particularised scope of the amended statement of charge (and the charge period) that is properly within the Court’s consideration.

96. In relation to the “duplication” of the evidence relative to the two proceedings, Council submits that it was required to prosecute two discrete contempt charges (in two classes of the Court’s jurisdiction) each requiring evidence to be marshalled, and that there is nothing in Council’s conduct that could amount to what would otherwise be considered “disentitling” conduct in relation to an award of costs.

97. While I do not consider that there is a general principle or rule of law in contempt cases that a successful prosecutor is routinely awarded costs on an indemnity basis, it is at least the conventional practice in most cases to ensure persons are not deterred from bringing contempt proceedings. Furthermore, the issue of costs is discretionary and must yield to the particular circumstances of the case.

98. Were it not for the fact that this present contempt motion proceeded concurrently with the Class 1 contempt motion in relation to orders made on 27 November 2020 by Preston J, and that there was an element of commonality in the evidence and submissions marshalled, I would have awarded costs on an indemnity basis; and it is with some reluctance that I have formed the view that, contrary to the common practice, an order for costs on the ordinary basis in each of the discrete proceedings is appropriate.

Orders

99. The orders of the Court are as follows:

1. Sarah Malass is fined the sum of $20,000 for her contempt in failing to comply with Order (1) of the Court’s orders made 11 August 2021.

2. Sarah Malass is fined the sum of $7,500 for her contempt in failing to comply with Order (1) of the Court’s orders made 19 October 2021.

3. Sarah Malass is to pay the costs of Strathfield Municipal Council of the notice of motion for contempt filed 16 December 2021.

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Amendments

25 November 2022 - The words “within 28 days of the date of this judgment” deleted from paragraph [99(3)].

Decision last updated: 25 November 2022