Blacktown City Council v Derek Hambly

The Proceedings Were Heard Ex Parte

1. Hambly did not appear at the hearing. In fact, he has failed to appear throughout almost all of the Class 4 civil enforcement proceedings, including the final hearing, and the contempt proceedings. He has also filed no evidence or any other documentation in respect of the contempt proceedings.
2. As a consequence of the latter state of affairs, the Court requested that the parties appear on 3 July 2023, to mention the matter. There was no appearance by Hambly. The Council was directed to, and did, write to Hambly to remind him of the final hearing date and time for the contempt proceedings.
3. Shortly before the matter was due to be heard on 5 July 2023, an individual purporting to be Hambly contacted the Court indicating that Hambly had Covid-19 and would not be attending the hearing. The Court responded to the individual by email stating that in the absence of a medical certificate to this effect the hearing would proceed in Hambly's absence. No medical certificate was received.
4. On 5 July 2023 the matter commenced and Hambly did not appear. Because no medical certificate was furnished to the Court by him (or anyone else) the Court proceeded to hear the matter ex parte, satisfied of the fact that Hambly was aware of the time, date and place of the hearing.
5. However, during the course of the Council attempting to demonstrate that it had served all of the documents that it would be relying upon at the hearing, it became apparent that the orders for substituted service made by the Court on 10 February 2023 had not been complied with, necessitating the adjournment of the hearing until 10 July 2023, in order to effect compliance.
6. The Council was directed to write to Hambly informing him of this fact and to reiterate that if he wanted to seek an adjournment on medical grounds, a medical certificate was required to do so.
7. No medical certificate was provided by him and he failed to appear at the commencement of the part-heard trial on 10 July 2023.
8. In order to prove service of all of the relevant material the Council relied upon the affidavits of service of Alexander Taylor affirmed 28 June and 10 July 2023, and a schedule of service attaching further affidavits of service.
9. Having read all the material filed, the Court was satisfied that it was appropriate to proceed with the remainder of the hearing on an ex parte basis.

Evidence of the Contempt Relied Upon by the Council

1. There being no evidence filed by Hambly, the only evidence before the Court of the alleged contempt committed by him was that of the Council, comprising of: 1. an affidavit of Laura Raffaele, a solicitor for the Council, sworn 8 November 2022; and 2. two affidavits of Jason Roberts, sworn 4 August 2022 and 9 June 2023.

The Commission of the Contempt

1. Hambly is the owner of rural land at Riverstone ("the land"), being: 1. Lots 1 and 2, Section O, Deposited Plan 1653 known as Milton Street, Riverstone; and 2. Lots 19 and 20, Section O, Deposited Plan 1653 known as Trafalgar Street, Riverstone.
2. Relevant to the proceedings are several further areas of land, not owned by Hambly, which include: 1. adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street ("the adjacent roads"); and 2. neighbouring lands ("neighbouring lands"): 1. including Lots 3 and 4, Section O, Deposited Plan 1653, known as Milton Street, Riverstone; and 2. Lots 17 and 18, Section O, Deposited Plan 1653, known as Trafalgar Street, Riverstone.
3. On 10 August 2018, under Div 9.3 of the Environmental Planning and Assessment Act 1979 ("EPAA"), the Council issued Hambly with a development control order requiring him to cease the use of all structures located on the land for the purpose of human habitation (item 1) and to remove the unauthorised structures (being caravans, tents and other structures) located on the land, the adjacent roads and the neighbouring land (item 2). The order required compliance within 90 days for item 1 and 120 days for item 2.
4. Because Hambly did not comply with the development control order the Council commenced Class 4 civil enforcement proceedings pursuant to s 9.45 of the EPAA to remedy and restrain breaches of the EPAA committed by him.
5. Hambly initially appeared to defend the Class 4 civil enforcement proceedings, including attending a Court arranged mediation on 4 March 2020, which was unsuccessful at resolving the matter. However, thereafter he did not actively participate in the proceedings.
6. The Court determined the Class 4 proceedings by finding that on the land, the adjacent road and the neighbouring lands, Hambly had erected or authorised other persons to erect: 1. three caravans/camp trailers; 2. three canvas tents; 3. two camping cubicles; 4. a large structure comprising multiple temporary shade structures with a tarpaulin roof; and 5. other standalone temporary shade structures.
7. The Court found that Hambly had neither ceased using, nor removed, the authorised structures by the required dates or at all (Hambly at [54]-[75]), and made the orders referred to above.
8. On 27 October 2020 orders were served on Hambly in accordance with the substituted service orders made by the Court on 16 October 2020.
9. On 26 May 2021 the Council's solicitors wrote to Hambly advising him that it considered that he had failed to comply with the orders and foreshadowed initiating contempt proceedings.
10. On 27 May 2021 the Council served a further copy of the orders again referring to contempt of court for failure to comply with the orders.
11. On 27 October 2022 the Council's solicitors similarly wrote to Hambly advising him that had failed to comply with the orders and that it would commence contempt proceedings.
12. On 7 November 2022 the Council caused a licenced process server to serve the 27 October 2022 letter.
13. Contempt proceedings were filed on 10 November 2022. The particulars to the statement of charge relevantly stated as follows: PARTICULARS 1. Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. 0, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. 0, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. 0, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. 0, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures: (a) Three (3) caravans/camp trailers; (b) Three (3) canvas tents; (c) Two (2) camping cubicles; (d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the Property; and (e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope.

Hambly is in Contempt of the Orders

1. Roberts is the Coordinator, Development Compliance Officer employed by the Council. He has performed compliance duties for local government since 2008.
2. On 28 April 2021 Roberts and Daniel Bailey attended the land and attempted to gain access to conduct an inspection. However, a road barricade was positioned at the Milton Street entrance with a string of orange flags blocking the entrance. The string was partially on the ground or roadway.
3. Roberts observed that a gate and other structures had been erected to prohibit pedestrian access to the land and three signs stating "STOP", "DANGER KEEP CLEAR EXPLOSIVE POWER TOOL IN USE", and another stating "WARNING NAILING TOOL IN USE".
4. He and Bailey were unable to walk onto the property. He called out but received no response. Roberts took several photographs which showed that the driveway appeared to be used frequently because no grass had grown over the vehicle marks that were present. Roberts took photographs of the land showing the presence of the unlawful structures.
5. On 17 June 2021 Roberts and Bailey again attempted to conduct an inspection. On arrival he observed a cloth barricade and other structures erected to prevent vehicle and pedestrian access to the land. The items were different to the earlier inspection on 28 April 2021. Two signs were affixed, the first stating "STOP" and the second stating "WARNING NAILING TOOL IN USE".
6. Roberts deposed that the new barricade was placed approximately 30 m closer to the entrance of the land from Burfitt Road, Riverstone. He saw two additional signs, one being a black and white traffic sign partially blocking the road and another stating "ROAD CLOSED", placed on an angle on the side of the road to the entrance to the land.
7. Roberts gave evidence that as he was reversing his vehicle out of Milton Street, he saw Hambly driving a Blue Ford Fiesta with registration plates "LAWYA-4". He deposed that he performed a u-turn and stopped his vehicle beside the Fiesta. The following conversation occurred between himself and Hambly: Mr Roberts: Mr Hambly you have not removed the structures from the land, you will be hearing from the Court. The Contemnor: You will be hearing from the Court.
8. Roberts stated that as he drove across Milton Street towards the intersection of Carnarvon Road, he saw Hambly drive towards his vehicle at speed. He became concerned for their safety and requested that Bailey film the events on his mobile telephone.
9. Hambly continued to follow behind in his vehicle until Roberts stopped behind a truck at the intersection of Carnarvon Road and Grange Avenue. Roberts heard Hambly's tyres screech when he came to a stop in the gravel beside Roberts's vehicle.
10. Again concerned for his safety, Roberts manoeuvred his car to create distance between the vehicles. He witnessed Hambly leaning out of his car window with a piece of paper with handwriting on it. Roberts began driving to Riverstone Police station but decided to return to the Council. A series of photographs taken by Bailey during the interaction were produced by Roberts to the Court.
11. On 14 March 2022 Roberts and Mujahid Akhtar attended the land to conduct another inspection. Roberts gave evidence that he saw some of the structures the subject of the orders on the land. He took a series of photographs and obtained aerial images of the land.
12. On 7 June 2023 Roberts, together with Laurie Doolan, attended the land and carried out an inspection. Roberts and Doolan were able to partially enter the land on foot through the Burfitt Road driveway. The Milton Road driveway appeared to be used frequently based on the absence of grass or vegetation in the area where vehicles had travelled.
13. Roberts saw a rope across the driveway slightly above head height with a sign and what appeared to be "police crime scene tape". The sign stated: A PERSON'S COMMON LAW RIGHT TO ENTER IS EXPRESSLY WITHDRAWN. ADMITTANCE BY INVITATION ONLY TO ALL PERSONS & ENTITIES OTHERWISE TREPASS APPLIES.
14. The rope and sign were on a public road and not on private land.
15. Approximately 10 m further along the driveway he saw two signs, both of which read "ROAD CLOSED NO ENTRY", before seeing a chain attached to a tree on the side of the driveway.
16. Roberts deposed that he saw Hambly. He identified himself, but there was no response from Hambly.
17. Roberts walked further down the driveway and from a distance saw some of the unauthorised structures consisting of what appeared to be tents, tarpaulins and other scrap building material on the land. He took a series of photographs of the land during his inspection and obtained aerial photographs dated 19 March 2023, which showed structures on the land.

Principles of Contempt

1. Part 55 of the Supreme Court Rules 1970 ("SCR") dealing with contempt applies to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction (r 6.3 of the Land and Environment Court Rules 2007 ("LEC Rules").
2. The orders were made in proceedings in Class 4 of the Court's jurisdiction, and accordingly, Pt 55 of the SCR applies to these contempt proceedings.
3. The Council bears the onus of establishing the contempt charge beyond reasonable doubt, irrespective of whether the contempt is civil or criminal, or wilful or contumacious, rather than technical (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 543, 545 and 548 and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [72]).
4. Therefore, as the moving party, the Council bears the onus of establishing the contempt charge beyond a reasonable doubt.
5. As a matter of fairness to Hambly, it was determined that the contempt proceedings would be bifurcated into a hearing on liability and, if required, a separate hearing on punishment. This would afford Hambly the opportunity of filing evidence of any mitigating factors that he might seek to rely upon if the Court were to find him guilty of contempt.
6. As a consequence, it is neither necessary nor appropriate to determine at this juncture whether any contempt committed by Hambly is technical, wilful or contumacious (for an explanation of the distinction see Georges River Council v Hamade [2023] NSWLEC 71 at [37]-[41]).
7. Having regard to the evidence deposed to in the Roberts's affidavits and the photographs that he took and that were before the Court, the Council has proven the contempt to the requisite standard. Having said this, and no doubt because of the difficulties encountered in accessing the land (in this regard, however, the Council did not appear to approach the Court for a formal order to enter the land to inspect it), there is insufficient evidence to prove beyond reasonable doubt that Hambly has not complied with the totality of order 4. That is, it cannot be demonstrated that he has not removed the three caravans/camp trailers, three canvas tents or two camping cubicles referred to in order 1(a), (b), (c), or that he has not ceased using those unauthorised structures. The photographs annexed to the Roberts's affidavits were not of sufficient quality to determine otherwise.
8. There is no doubt, however, that Hambly has not paid the Council's costs pursuant to order 5 of the orders.
9. Accordingly, the Court finds that Hambly is in contempt of the orders only insofar as he has failed to: 1. cease using the unauthorised structures on the land described in order 1(d) and (e) pursuant to order 4; 2. remove the unauthorised structures from the land described in order 1(d) and (e) pursuant to order 4; 3. reinstate the land described in order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in order 1(d) and (e), pursuant to order 4; and 4. pay the Council's costs of the proceedings pursuant to order 5.

Orders

1. The formal orders of the Court are therefore as follows: 1. Derek Hambly is guilty of contempt of this Court for disobeying or otherwise failing to comply with order 4 of the Court's orders made on 26 August 2020, but only with respect to the unauthorised structures referred to in order 1(d) and (e) of the Court's orders made on 26 August 2020; 2. Derek Hambly is guilty of contempt of this Court for disobeying or otherwise failing to comply with order 5 of the Court's orders made on 26 August 2020; 3. costs are reserved until the determination of an appropriate punishment for the commission of the contempt referred to above, with the exception of the costs of the hearing on 5 July 2023, in respect of which each party is to bear their own costs; 4. the matter is listed before the List Judge on 21 July 2023, for directions for the preparation and setting down of a hearing on penalty; and 5. the exhibits are to be returned after the finalisation of the hearing on penalty.

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: 13 July 2023