The respondents, Mrs Sandra Kelly and her son Mr Raymond Kelly (Respondents) have each pleaded guilty to the charges that they have disobeyed orders made by Robson J in this Court on 7 October 2022 (Orders).
[2]
Procedural History
By Notices of Motion and Statements of Charge filed on 21 December 2023 (Motions), Bayside Council (Council or Applicant) seek orders that the Respondents be punished for contempt for disobeying the Orders of this Court made on 7 October 2022 as well as costs.
The Orders are as follows:
By consent the Court orders:
1. Except as provided by Order 3, the First and Second Respondents are to remove from the front and rear yard of the land at Lot 14 in Deposited Plan 1100425 also known as 44 Garden Street, Eastlakes NSW 2018 (Premises) all unregistered or scrap vehicles, vehicle parts, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers, gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials, and other refuse materials (Materials) on or before 18 July 2023.
2. The removal of the Materials required by Order 1 must occur in the following manner:
(a) the Materials must be disposed of lawfully;
(b) the Materials must be removed only between the hours of 9:00am and 5:00pm Monday to Saturday;
(c) the removal of the Materials must not obstruct vehicular access to or from Garden Street, Eastlakes;
(d) the removal of the Materials must be carried out safely so as to ensure it does not cause any damage to third party property or persons; and
(e) otherwise must occur in accordance with the SCHEDULE to these orders.
3. Order 1 does not apply to the parking/storage of motor vehicles on the driveway or under the carport (if cleaned of Materials) on the Premises, whether registered or unregistered. For the avoidance of doubt no vehicles are to be parked/stored in the front yard of the Premises, and no unregistered vehicles are to be removed from the Premises and parked on Garden Street.
4. Except as provided by order 3, from 18 July 2023 and continuing the Respondents are to by themselves, their servants and agents be restrained from using the Premises for the purposes of collecting and storing unregistered or scrap vehicles, vehicle parts, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers, gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials.
5. Costs are reserved.
…
On 9 February 2024, being the first directions hearing for the Motions, orders were made listing the matter for directions on 5 April 2024 specifically for plea or mention, the effect of which was to afford the Respondents additional time by which to comply with the Orders and thereby purge their contempt. Directions were also made providing for the Applicant to be granted access to the subject property (Premises) for the purposes of conducting an inspection to determine the progress of the works undertaken.
On 5 April 2024, the Respondents both entered guilty pleas in respect of their respective Statements of Charge. The Motions were listed for hearing on 25 June 2024 and directions were made not dissimilar to those on the previous occasion which both had the effect of provided additional time for the Respondents to comply with the Orders and granting the Applicant entry onto the Premises.
On 25 June 2024 at the hearing of the Motions, after the tendering of evidence, the Respondents sought further adjournment of both Motions to 9 August 2024 to enable further work to be undertaken to purge the contempt. The Council was prepared to not oppose the adjournment provided some progress was made in complying with the Orders. I adjourned the matter part heard. The Court file notes as follows:
1. Adjourn the Notices of Motion until 10am on 9 August 2024.
Note: on that date, the Respondents are to have cleared at least 50% of the area identified as "Zone 1". If that area is so cleared, I will entertain making further orders to purge the contempt proceedings. If it is not cleared, I will entertain an application by Council to enter and undertake the work at the Respondents' costs.
…
On 9 August 2024, the evidence indicated that whilst the Respondents had not completed the totality of the work referred to in the note to the Court file, substantial work had been undertaken in the area identified as Zone 1. The Respondents sought additional time to carry out further work, which, subject to continuing progress, was not opposed by the Council. Accordingly, I again adjourned both Motions to 26 September 2024. On that occasion, I also made orders for the filing and service of the form of orders the Council sought in relation to the undertaking of the works the subject of the Orders, as well as any evidence.
On 26 September 2024, the evidence indicated that some further progress had been made to comply with the Orders. At the further request of the Respondents, which was not opposed by the Council on the same terms previously indicated, I adjourned both Motions to 19 November 2024. The Court file notes as follows:
The Court notes:
1. Unless: the white panel van; the white transit van; the white Commodore station wagon; and the red Calais are removed from the premises and not parked on the road I will not entertain any further application for a time extension.
…
At the hearing of the Motions on 19 November 2024, it was apparent that the Respondents had only achieved the removal of the red Calais, and that the remaining works had not been undertaken. The Second Respondent submitted that whilst he had attempted to complete the works as indicated he had difficulties relating to the transport of vehicles to other premises on the Central Coast due to the boggy nature of the land and some difficulties with timing as he was undertaking the work on his own. Notwithstanding these submissions, I determined that a further adjournment was not appropriate as the works remained incomplete, that sufficient time had been provided to enable the works to be undertaken, such time previously being indicated by the Second Respondent as more than sufficient to carry out the identified works.
[3]
Evidence
The Council read a number of affidavits relating to the state of the Premises and compliance with the Orders. Such evidence was updated with further information on each occasion the matter was relisted.
The Respondents each filed a document entitled "affidavit" which set out the matters they wished the Court to consider in the imposition of an appropriate sentence in the matter.
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Council's submissions
The Council submitted that the Court would be satisfied that, notwithstanding the accommodations that had been given to the Respondents by way of a number of adjournments, as at the hearing the Respondents had not purged their contempt and compliance with the Orders remained outstanding.
The Council submitted that the contempt was wilful and the ongoing breach was serious, disclosing a lack of attention to the need to comply with the Orders. The evidence disclosed that the Second Respondent took little to no positive actions to ensure that the Orders were complied with.
In the circumstances, the Council submitted that the making of an order as sought by it permitting the Council to enter the land and carry out sufficient work to ensure that the Premises were in a state that complied with the Orders was appropriate. The Respondents, whilst making progress, had not demonstrated that they could sufficiently comply with the Orders within a reasonable time.
If such an order was made the Council would be entitled to recover the costs of undertaking such works from the Respondents. In those circumstances, the Council did not press the making of any other order by way of punishment for the contempt.
[5]
Respondents' Submissions
The Respondents had both suffered medical conditions after the making of the Orders such that the ability to comply with the terms of the Orders was difficult. The First Respondent is an older woman with mobility issues who is unable to assist her son with the physical work required to comply with the Orders.
The Second Respondent has ongoing medical issues that render his capacity to commit to the follow through of his intention to comply with the Orders difficult. He has been working hard to achieve what he had agreed to do on each occasion. He is genuinely sorry that he has not been able to complete the work. However, he remains committed to ensuring the Orders are complied with.
Neither of the Respondents are in employment, they both receive benefit payments. The financial situation is such that the carrying out of the works, where it requires the expenditure of funds, must be scheduled to coincide with the receipt of funds.
The Second Respondent has carried out all of the work to date and will carry out any future work on his own as he cannot afford to hire assistance and he has no ready assistance that he can call upon.
Both of the Respondents have indicated that they understood the requirement to comply with the Orders. They also accepted that compliance with orders made by a Court was important, and they were remorseful of the failure to comply.
[6]
Findings
On the evidence, I am satisfied beyond reasonable doubt that the Respondents are guilty of contempt in that they disobeyed the Orders made by this Court on 7 October 2022. I am also satisfied beyond reasonable doubt, on the evidence available and the admissions of the Respondents, that whilst some work has been undertaken, the contempt remains.
Whilst the contempt remains unpurged and there has been a lengthy period of non-compliance, I do not find that the contempt was a deliberate disobedience, in that the Respondents intentionally ignored the requirement to comply with the Orders. I accept that the Respondents each, due to personal circumstances, initially found themselves unable to undertake the work. They have each taken steps since the commencement of the proceedings to ensure that such impediments are minimised.
I acknowledge that the Respondents wish to comply with the Orders themselves and that they have taken some steps to achieve that end. However, I am also satisfied that this matter needs to have some resolution both for the benefit of the public trust in the ensuring of compliance with orders of the Court as well as for the benefit of both the Respondents and the Applicant.
As I have explained to the Respondents, it is in their interests to undertake the work themselves, as in those circumstances they retain control over the manner in which the work is undertaken and the ability to decide which of the material they retain and which they dispose of. This matter was initially resolved by consent orders in October 2022 with the Orders reflecting that agreement. Despite their endeavours the Respondents are yet to comply with the Orders, notwithstanding that almost two years has passed since the making of the Orders.
In the circumstances, I consider that it is appropriate that the order sought by the Council that it be lawfully permitted to enter the Premises and render them in a state that is in conformity with the Order should be made. The making of the order upon the Council will ensure compliance with the Order, thereby serving the public interest and in the interests of justice in having the orders completed.
However, in the interests of permitting the Council time to put such arrangements in place, and to allow the Respondents one final opportunity to undertake such work, I will defer the operation of the Orders until 3 March 2025, a date accepted by the Council at the hearing. On or after that date, the Council will be entitled to enter the Premises and remove the material referred to in the order I will make. The Respondents will have no authority to prevent such work being undertaken except through the agreement of the Council.
I encourage the Second Respondent to do all he can to bring the Premises into a state of compliance before 3 March 2025. He assures me that it can be done. I trust that he will act to ensure that it does. However, if he fails in his attempts, it will be a matter for the Council to ensure compliance with the Court's orders.
The making of the order sought by the Council will also operate as a general deterrence to other persons who are the subject of similar orders to discourage non-compliance with the orders of the Court.
I accept the Council's position that, subject to the making of the proposed orders in Exhibit C, no further order, by way of penalty is warranted in the circumstances.
[7]
Costs
The Council sought its costs of these proceedings on an indemnity basis, or in the alternative on the usual basis. The Council indicated that whilst it sought this order, it was within its discretion as to whether it sought to enforce the order.
The Respondents indicated that they were using their present available money to fund the works. Additionally, they indicated that if any such order was made, they would have to seek a payment plan if the costs order was sought to be enforced.
I will order that the Respondents pay the Council's costs on the usual basis, not on an indemnity basis. As was accepted by the Council, an order for costs is not punitive but intended to ensure that the Council is adequately compensated for the costs it has been required to incur in the commencement and prosecution of the proceedings. The payment of such costs is, on that basis, made on the usual party/party basis. Indemnity costs are awarded where there has been some conduct for which the usual order is considered not to be sufficient: see Queanbeyan-Palerang Regional Council v Banks (No 2) [2024] NSWLEC 99 at [48]-[52]. I do not consider that there has been conduct that would warrant the making of such an order. Whilst a number of adjournments were given and the proposed work was not completed, it is to be noted that at least some noticeable attempts had been made on each occasion such that the adjournment was not wasted. Accordingly, I will make the usual orders at to costs.
[8]
Conclusion and Orders
For the foregoing reasons, I will make the order in the form proposed by the Council in the short minutes of order filed and served by the Council and marked as Exhibit C with the following amendments:
1. Proposed order 1 be amended to reflect the deferral of the operation of the Orders until 3 March 2025.
2. Changes to the wording of proposed order 3 insofar as the recovery of the costs is limited to the reasonable costs incurred.
3. The addition of the order permitting an inspection of the Premises prior to Council's carrying out of any work.
4. Include the terms of order 1 of the 7 October 2022 Orders in the notes to the proposed orders.
The Court orders:
1. The First Respondent is convicted of contempt as charged in the Statement of Charge filed on 21 December 2023.
2. The Second Respondent is convicted of contempt as charged in the Statement of Charge filed on 21 December 2023.
3. Pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on and from 3 March 2025 the Applicant, by its servants, agents or contractors, is permitted to enter onto the Premises and:
1. seize and remove all materials from the Premises so as to give effect to, and in accordance with, orders 1 and 2 made by the Court by consent dated 7 October 2022 (7 October 2022 Orders); and
2. otherwise do all such things as are necessary or convenient to give effect to the terms of the 7 October 2022 Orders, including for the avoidance of doubt re-entry onto the Premises for the purposes of giving effect to the said orders.
NSW Police may be present at the Premises during the carrying out of this order.
1. For the purposes of ensuring compliance with order 3 above, the Respondents:
1. must not obstruct the Applicant, its servants, agents or contractors in the carrying out of order 3 above; and
2. are to facilitate the removal of the vehicles referred to at clauses 1 - 5 of the Schedule to the 7 October 2022 Orders, including providing internal access to the said vehicles to allow handbrakes to be disengaged to facilitate the towing of the vehicles.
1. Pursuant to r 40.8 of the UCPR, the Respondents are to pay the Applicant's reasonable costs and expenses incurred in complying with order 3 above.
2. Pursuant to r 23.8(1)(a) of the UCPR, the Applicant, by its servants, agents or contractors, is granted access to the Premises between the hours of 9am and 5pm for the purposes of conducting an inspection to determine whether the 7 October 2022 Orders have been complied with, and if not, the extent of works required to render the Premises in compliance. Council is required to give the Respondents 48 hours' notice in writing of the inspection.
3. The Respondents are to pay the Council's costs of the Notices of Motion on the usual basis.
The Court notes:
1. These orders adopt the same definitions as the 7 October 2022 Orders, as follows:
'Premises' means Lot 14 DP 1100425, known as 44 Garden Street, Eastlakes NSW 2018; and
'Materials' means all unregistered or scrap vehicles, vehicle parts, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials, and other refuse materials.
1. For the avoidance of doubt:
1. order 1 of the 7 October 2022 Orders provides:
1. Except as provided by Order 3, the First and Second Respondents are to remove from the front and rear yard of the land at Lot 14 in Deposited Plan 1100425 also known as 44 Garden Street, Eastlakes NSW 2018 (Premises) all unregistered or scrap vehicles, vehicle pars, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers, gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials, and other refuse materials (Materials) on or before 18 July 2023.
1. order 2 of the 7 October 2022 Orders provides:
2. The removal of the Materials required by Order 1 must occur in the following manner:
(a) the Materials must be disposed of lawfully;
(b) the Materials must be removed only between the hours of 9:00am and 5:00pm Monday to Saturday;
(c) the removal of the Materials must not obstruct vehicular access to or from Garden Street, Eastlakes;
(d) the removal of the Materials must be carried out safely so as to ensure it does not cause any damage to third party property or persons; and
(e) otherwise must occur in accordance with the SCHEDULE to these orders.
1. order 3 of the 7 October 2022 Orders provides:
3. Order 1 does not apply to the parking/ storage of motor vehicles on the driveway or under the carport (if cleaned of Materials) on the Premises, whether registered or unregistered. For the avoidance of doubt no vehicles are to be parked/ stored in the front yard of the Premises, and no unregistered vehicles are to be removed from the Premises and parked on Garden Street.
1. by way of summary, the Schedule to the 7 October 2022 Orders includes:
(a) the cars that are to be removed pursuant to order 1 of the 7 October 2022 Orders (clauses 1 - 5 of the said Schedule); and
(b) an aerial photograph indicating in red the area(s) of the Premises within which the removal of the Materials is to occur, a copy of which is reproduced below:
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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: 29 November 2024