Armidale Local Aboriginal Lands Council v Moran

Supreme Court of NSW|2019-12-13|Before: Lonergan J, Adamson J, Schmidt J

Judgment

Whilst sitting as duty judge on 11 December 2019 an ex parte application was made for expedition of the hearing of a notice of motion seeking, on Ms Moran's behalf, discharge from a contempt. The basis of the expedition was that early discharge from a prison sentence for contempt was sought. That sentence expired on 18 December 2019 and if the matter was not dealt with urgently, the motion would be rendered futile.
I granted expedition and listed the notice of motion for hearing on Friday 13 December 2019.
Ms Moran was represented by Mr Styles from the Aboriginal Legal Service ("ALS"). The Crown Advocate, Mr Kell SC, appeared amicus curiae instructed by Mr Thomson of the Crown Solicitor's Office.
I made orders immediately upon completion of the short hearing, discharging and releasing Ms Moran from the correctional centre where she was at that time imprisoned. I also revoked the sentence warrant that put her there, noted that she was to be released immediately and noted her undertaking not to re-enter the property that had been the subject of the earlier contempt decision.
These are my reasons for making those orders.

Background

On 5 December 2019, the Court (Adamson J) made a declaration and convicted Ms Moran of criminal contempt with respect to the breach of two orders made by the Court (Schmidt J) on 20 July 2018: Armidale Local Aboriginal Lands Council v Moran (No 2) [2019] NSWSC 1739.
The Court sentenced Ms Moran to a term of imprisonment of 14 days, to commence on 5 December 2019 and expire on 18 December 2019.
In sentencing Ms Moran, Adamson J said, at [16]: "Ms Moran's disobedience to the Court's orders has been both deliberate and persistent. She does not accept the authority of the Court and insisted in her submissions that her alleged right to occupy the Premises overrode the Court's orders to the contrary. I am satisfied beyond reasonable doubt that she is guilty of criminal contempt as charged."
Her Honour further said, at [23]: "I am satisfied that a short sentence [of imprisonment] is sufficient both to vindicate the Court's processes and to fulfil the other purposes of sentencing."
The background to the dispute between Ms Moran and the Armidale Local Aboriginal Lands Council ("Lands Council") is set out in the judgment of Adamson J, at [2]-[10]: "The Council owns property in Long Swamp Road, Armidale, on which a two-storey building is located (the Premises). The Council wishes to demolish the Premises and use the land to construct suitable accommodation for members of the Indigenous community in the area who are in need. Ms Moran lives on the Premises. By statement of claim filed on 11 July 2018 the Council sought a declaration that Ms Moran had no right to remain on the Premises. The matter was heard by Schmidt J on 17 and 19 July 2018. On 20 July 2018 her Honour made the declaration sought and ordered that Ms Moran be restrained from entering the Premises and that she give vacant possession of the Premises within 5 days: Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133. On 30 July 2018, Sheriff's officers went to the Premises to evict Ms Moran, who was not there at the time of their visit although she remained in occupation. They posted an eviction notice on the door of the Premises and signed the Premises over to the Council. On 31 July 2018, contractors engaged by the Council went to the Premises to demolish them. They found Ms Moran there. The police were called to remove her from the Premises but she informed them, in effect, that she was appealing against the orders of Schmidt J and that, accordingly, they had no right to dispossess her. Efforts to ascertain whether Ms Moran had appealed against Schmidt J's decision revealed that no documents had been filed. However, the Sheriff was loath to proceed while there was, according to Ms Moran, an appeal pending. On 3 August 2018, Ms Moran was charged with remaining on inclosed lands. The Court Attendance Notice gave the following details of the offence: 'Inclosed Lands Protection Act 1901, section 4(1)(b) Remain on inclosed lands Between 10.00am on 26/07/2018 and 3.25pm on 3/08/2018 at Armidale Did remain on the inclosed lands of the Armidale Aboriginal Land Council situate at [the Premises] after being requested by the legal representative of the owner of the said lands to leave those lands.' Notwithstanding the charge, Ms Moran failed to vacate the Premises. On 28 February 2019 the Council filed a notice of motion seeking a declaration that Ms Moran was guilty of contempt as set out in the statement of charge and an order that she be punished for contempt. The notice of motion was listed for hearing before me on 5 June 2019. On 4 June 2019 Ms Moran filed a summons for leave to appeal against the orders of Schmidt J. Because of the timing of the leave application, I stood over the Council's notice of motion. The leave application was heard on 5 September 2019 and dismissed on 10 September 2019: Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 (Macfarlan and Payne JJA). On 10 October 2019 I listed the Council's notice of motion for hearing on 5 December 2019. On 10 October 2019 Ms Moran appeared by telephone. I explained to her that the Court has power to put someone in gaol if the person is found to be in contempt and that she should appreciate that contempt of court was a very serious matter. I warned her that it was possible that a custodial sentence would be imposed if she did not vacate the Premises. That afternoon, Ms Moran telephoned the Council's solicitors and told them that she wanted to move out of the Premises. On 14 October 2019 Ms Moran delivered a hand-written letter to the Council's solicitors informing them that she was moving out of the Premises that day and would like to move to Premises in Morris Street. Notwithstanding this communication Ms Moran remains in the Premises for the reasons which I will refer to later. On 16 October 2019, after a hearing in the Local Court, Ms Moran was found not guilty, as a consequence of which the charge referred to above was dismissed. The evidence before me does not establish the reasons for the dismissal of the charge. However, Mr Eardley has informed me that the dismissal was the consequence of the magistrate's reservations about the location and extent of the inclosure of the land on which the Premises were situated. On 5 November 2019 Ms Moran provided to the Council a document from Energy Australia dated 31 October 2019 entitled "Disconnection Warning Notice" which indicated that electricity was still being used at the Premises."
Ms Moran had breached the first order that Schmidt J [1] made by entering, occupying and remaining at the specified property. She breached the second order that Schmidt J made by failing to give the plaintiff/prosecutor (Lands Council) vacant possession of the property within 5 days of the order. Each of the contempts that Ms Moran committed was complete by the time that Adamson J made the declaration and recorded the conviction.
The notice of motion filed on 10 December 2019 sought, in addition to an urgent hearing, that Ms Moran's contempt be found to be purged and that she be discharged from punishment for breach of the orders of Schmidt J.
At the hearing on 13 December 2019, Mr Styles did not press for a declaration that the contempt had been purged, recognising with the assistance of the written submissions of Mr Kell SC, that such an order was not necessary and would not reflect the circumstances as they had unfolded.
The Lands Council had indicated that it did not intend to appear on the hearing of the motion and did not consent to nor oppose the orders sought. [2]
The issues for determination amounted to first, whether the evidentiary and factual material tendered enlivened my discretion to discharge Ms Moran and second, whether I should exercise that discretion to discharge and release Ms Moran from the correctional centre where she was at that time held.

Part 55 r 14 - Principles

Part 55 r 14 of the Supreme Court Rules 1970 (NSW) ("SCR") provides: Where a contemnor is committed to a correctional centre for a term, the Court may order his discharge before the expiry of the term.
The rule confers upon the Court a discretion to order that a contemnor be discharged prior to the expiry of the term for which she was committed to a correctional centre.
Part 55 r 14 is not concerned with contentions to the effect that a sentence imposed was too severe - these would be matters for an appeal. [3] Rather, as the authorities indicate, that the Court is looking to factors such as relevant changes in circumstances since the sentence was imposed. In Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 ("Young"), Handley JA, at 289A, said of Pt 55 r 14: "The rule confers a wide judicial discretion but an applicant must make out a proper case for a discharge."
In that same case, Kirby P relevantly said, at 283B: "… the discharge power must be seen as normally directed to the provision of clemency to the imprisoned contemnor. It will usually be applicable only where the contemnor shows remorse. Ordinarily, some new considerations, which were not before the court which imposed the sentence, will have to be demonstrated in order to authorise the later court, of co-equal authority, to discharge the contemnor from prison short of the term originally imposed."
Kirby P also referred, at 283F, to the notion that "contrition and true acknowledgement of error" are primary grounds for the exercise of the discharge power. For his part, Powell J relevantly said, at 292F, that if Part 55 r 14 operates: "… in order that the Court might be persuaded to make an order for early discharge, there should be placed before it evidence as to some change in the relevant circumstances since the making of the order for committal which makes it inappropriate - as, for example, because no good purpose will be served by detaining the contemnor further … , or, because the contemnor has purged his contempt … - that the contemnor be detained further."
Young makes clear that to be evidence of a change in circumstances an apology must be genuine and not - as Mr Young's apology was regarded by Powell J, at 292G, "no more than an empty collection of words." In Young, the Court of Appeal declined to exercise the discharge power.
Young was applied by Meagher JA in Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280 ("Menzies"). In that case, factors to which Meagher JA had regard in determining to exercise the discharge power included the provision of apologies on the part of the contemnors, Mr and Mrs Menzies, the fact that Mr Menzies had arranged (from prison) for the delivering up of the vehicles the subject of the court orders that he had been defying, and the harrowing experience suffered by Mrs Menzies in custody.
In his written submissions, Mr Kell also drew my attention to two recent authorities of the Federal Court: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563; [2015] FCA 1103 (Logan J) ("Chaste") and Thunder Studios Inc (California) v Kazal (No 6) (2017) 356 ALR 238; [2017] FCA 1573 (Rares J) ("Kazal"). Each case deals with r 42.22 of the Federal Court Rules 2011 (Cth), [4] which has been described as "not materially different" from Pt 55 r 14. [5] In Kazal, after referring to Chaste and relevant UK authority, [6] Rares J said, at [53]: "I am of opinion that on an application under r 42.22 the contemnor must satisfy the Court that, first, there is a reason for discharging him or her early, and, secondly, that it is in the interests of justice to do so."

Affidavit evidence

Three affidavits were tendered in support of application.
An affidavit of Ms Chant, a solicitor from the ALS, deposed to her understanding that Ms Moran did not have present legal representation at the substantive contempt proceedings, that Ms Moran accepted she had been cautioned and that she apologised without reservation about the breach of orders, and that she had made arrangements to have her personal property removed from the premises. Ms Chant also referred to her instructions as to events that had occurred since Ms Moran's imprisonment which included hospitalisation to check on a heart condition and a sexual assault by a female inmate whilst at Surry Hills.
The affidavit of Mr Bourke, a solicitor from the ALS Armidale office, confirmed his observation that the premises in issue had been demolished and the land was now vacant, other than some items of furniture and some rubbish.
The affidavit of Ms Moran deposed to her acceptance that she had breached the Court's orders. She apologised for doing so stating that she "did not understand how serious it was". She stated, and I accept, that although she was warned that she could be sent to gaol if she did not vacate the premises, she did not understand that she could go to gaol straight away. Ms Moran stated that she did not have a lawyer with her to explain the process and to speak for her at the proceedings.
Ms Moran also described being checked for a heart condition which required stenting in February 2019, and that she was sexually violated by a female inmate at Surry Hills Correctional Centre after her incarceration. Ms Moran stated that she felt shame in custody and felt she was not a woman in Country, and expressed a wish to return to Country to heal. She stated that she was very sorry and undertook not to return to the premises.

Submissions

Mr Kell submitted that if the Court was satisfied as to the evidence advanced by Ms Moran - and that she understood and/or acknowledged the wrongness of her conduct in defying the Court's orders - it would be open to the Court to consider exercising the discharge power under Pt 55 r 14. He conceded that the material tendered was sufficient to enliven that discretion.
Mr Styles submitted that the question for determination was whether it was appropriate in all the circumstances to discharge Ms Moran from the punishment that has been imposed. He relied upon the statements of Meagher JA in Menzies to the effect that: "Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition and establish that the punishment suffered already is enough to vindicate the authority of the Court and to punish the contemnor for the contempt found."
In terms of the test articulated in Kazal by Rares J, the questions are first, whether there is a reason for discharging the contemnor early and second, is it in the interests of justice to do so.
Mr Styles submitted that the interests of justice should include considerations of clemency. As articulated persuasively and with admirable clarity by Mr Styles in his oral submissions: "Essentially, in these proceedings the idea of a punishment for contempt is the ultimate enforcement of the Court's authority. The imposition of a punishment is an exercise of that authority. There is only one potentially greater recognition of the authority of this Court than the exercise of a power to punish. That, in my submission, is the recognition by the individual who has faced that court in yielding and apologising to the court. It may be, in my submission, that that recognition of the Court's authority is a real and meaningful fact which emphasises the overall interests of justice that are sought to be enforced by a contempt. Essentially, the interests of the prosecutor have been met during the course of proceedings. That is, the contempt was complete and incapable of repetition at this point in the proceedings. That, at this point, the recognition given in the affidavit by Kerry Moran is the greatest, most emphatic expression of this Court's authority, greater even than the fact of punishing a contemnor by imprisonment. So, in those circumstances, the exercise of clemency or the exercise of a power mercifully is something that is in the interests of justice. It is not against the interests of the prosecutor and it is, definitely, and fairly obviously, in the interests of the contemnor in the proceedings."

Decision

I accept without hesitation that my discretion to discharge Ms Moran from the contempt was enlivened by the material tendered. I am also persuaded that I should exercise that discretion for her immediate release.
Ms Moran's affidavit contains what I consider to be a heartfelt expression of apology and regret. I accept the material as a persuasive demonstration of remorse and contrition and a true acknowledgement of her error. I consider the apology to be genuine.
The affidavit of Ms Chant backs up this position and explains a little about the inadequacy of the legal assistance Ms Moran had at the critical time, comprising only telephone advice, not from the ALS, nor from a person experienced in criminal law or the law of contempt. Mr Bourke's affidavit demonstrates that the premises are no longer standing. I accept the undertaking Ms Moran has given that she will not return to that place.
The short period in custody has been a salutary and distressing period for Ms Moran. The punishment suffered was enough to vindicate the authority of the Court and to punish her for the contempt found.

Two other relevant matters

Ms Moran's notice of motion initially sought an order that the contempt be found to be purged. That order was not pressed but it is worth noting the reasons why it was accepted that the order was unnecessary.
As submitted by Mr Kell, the notion of contempt being "purged" has different meanings in different contexts. In its perhaps more traditional usage, a contempt can be "purged", only where the relevant Court order was a mandatory (not a prohibitory) order that required positive conduct by the contemnor and which, after initial defiance, could and was subsequently complied with by the contemnor. On this view, an apology and contrition, without more, do not amount to a 'purging' of a contempt. The distinction is referred to by Logan J in Chaste, at [34]-[38], citing CJ v Flintshire Borough Council [2010] 2 FLR 1224; [2010] EWCA Civ 393. [7] In the present case, the better view is that the contempts that Ms Moran committed were complete by the time that Adamson J made the declaration and convicted her on 5 December 2019. In this sense, Ms Moran's conduct is relevantly equivalent to that of the contemnor in Chaste (Mr Foster), of whom Logan J said, at [38]: "…past conduct amounting to the contempts is a proved given which cannot be undone. … that past involvement cannot be undone or 'purged'."
It should also be noted that a discharge order under Part 55 r 14 does not remove existing liability for contempt. Whilst it was initially proposed by Mr Styles that the court should note that the discharge from punishment has the effect of avoiding the conviction for contempt, this order was not pressed.
As submitted by Mr Kell, the Court would fall into error if it made an order to that effect. In this respect, so called 'purging' (including apologising, showing contrition and providing undertakings) does not remove a liability for contempt that has been the subject of a finding of guilt and conviction, although it can clearly be relevant to penalty. [8] Similarly, the making of a discharge order under SCR Part 55 r 14 - with respect to a fixed term of imprisonment that has been imposed - does not affect the liability for contempt. Only a successful appeal can remove the liability for contempt. Here, as noted above, the liability for contempt was complete at the time that Adamson J made the relevant declaration and recorded the conviction.

Orders 1. The defendant, Kerry Moran, be discharged and released from the correctional centre where she is presently imprisoned. 2. For the purpose of giving effect to order 1, revoke the sentence warrant dated 5 December 2019 in relation to the defendant's imprisonment. 3. I note that Kerry Moran is to be released immediately. 4. I note that Kerry Moran undertakes not to re-enter the property the subject of the earlier contempt.

Endnotes

See Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133 (Schmidt J).
Email of 12 December 2019 (10:08am) from solicitors for the plaintiff sent to Mr Styles (ALS) and Mr Thomson (CSO).
See Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 282.D per Kirby P.
FCR rule 42.22 is entitled "Discharge before end of prison term" and provides: "If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person's discharge before the end of the term."
See Chaste at [11].
CJ v Flintshire Borough Council [2010] 2 FLR 1224; [2010] EWCA Civ 393.
See also Kazal at [49] per Rares J.
See, for example, Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118 Black J noted, at [48]: "… After Mr Pennimpede has purged his contempt, at least in the sense of making a payment into Court which is substantively equivalent to the undertaking with which Admark cannot now comply, coercion has no further part to play in fixing an appropriate penalty although retribution and deterrence remain important considerations". His Honour cited Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [50]. See also Prothonotary v A [2017] NSWSC 495 (finding of liability for contempt even though strong subjective circumstances amounting to 'purging'; such factors relevant to penalty).

Amendments 27 April 2020 - Correction to paragraph 23 due to typographic error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2020

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