Blacktown City Council v Hambly

Principles in relation to sentencing for contempt

1. Part 55 of the Supreme Court Rules 1970 (NSW) applies in relation to contempt of Court in proceedings in Class 1, 2, 3, 4 or 8 of this Court's jurisdiction. [6]
2. The distinction between civil and criminal contempt is "that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice." [7] However, disobedience of a court order amounts to a criminal contempt if it involves deliberate defiance or if it is contumacious. [8]
3. In Georges River Council v Hamade (Hamade) [9] at [37] to [41] Pepper J identified the following principles in relation to characterising contempt: 37. As alluded to above, distinction between civil and criminal contempt is largely illusory because both require the charge to be proved beyond reasonable doubt, and unless the contempt is technical, the usual outcome is the imposition of a penalty (Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23]). 38. The difference between technical and non-technical contempt is that the former, although constituting contempt, does not warrant any punitive sanction (Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at [16]). 39. Contempt is classified as technical where it is casual, accidental or unintentional (Pelechowski at [147]). 40. Contempt is wilful if there is evidence of "deliberate conduct but without specific intent to defy judicial authority" (Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79 at [20]). Wilful contempt amounts to disobedience that is more than casual, accidental or unintentional, but falls short of a specific attempt to defy the authority of the court so as to be contumacious (Pelechowski at [147]-[148] and Arxidia Pty Ltd at [66]). 41. Contumacious contempt is serious and renders criminal what would otherwise be civil contempt because it involves a conscious and deliberate defiance of the Court's orders and its authority (Witham v Holloway at 538-539, Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [2], [24], [130] and [141],Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] and Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33]).
4. Biscoe J has held that although the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) "does not apply directly to sentencing for civil contempts, its sentencing factors apply by analogy." [10] In Council of the City of Sydney v Owners Strata Plan 18820, [11] Robson J considered the Sentencing Act to provide "both guidelines and a framework to the Court when it is considering civil contempt". The purposes for which the Court may impose a sentence on an offender are identified in s 3A of the Sentencing Act, and the aggravating and mitigating factors are set out in s 21A(2) and (3) of the Sentencing Act.
5. In Hamade, Pepper J held that the underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice in demonstrating that the Court's order will be enforced. [12]
6. In Wood v Staunton (No 5), [13] Dunford J identified the following ten factors relevant to sentencing for contempt: 1. The seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. (the Wood factors).

Characterisation of the contempt

1. It first arises for the Court to characterise the respondent's contempt. In its written submissions, Council contended that the evidence supports a finding that the respondent's contempt is contumacious. Council accepted that it bears the onus of proving, beyond a reasonable doubt, that the respondent's contempt is wilful or contumacious rather than technical, or contumacious rather than wilful. In characterising the contempt, Mr Coffey submitted orally that the Court would have regard to the findings of Pepper J that the respondent "has well known that there were proceedings in this Court". In particular: 1. the respondent participated in a mediation on 4 March 2020 in the Class 4 proceedings before the chief judge; 2. the respondent was served with the chief judge's orders of 26 August 2020; and 3. at the contempt hearing on 5 and 10 July 2023, Council adduced evidence that Council officers attended the respondent's property "over a period of time between the orders that were made by the chief judge and the bringing of the contempt matter".
2. Mr Coffey also submitted orally that the respondent "has made an election - an intentional decision - to not comply with such Court orders".
3. At the hearing on sentence on 4 September 2023, I raised the following: HER HONOUR: Can I have regard in a sentence proceeding to the fact that that direction's hearing before me, and it's on the record that Mr Hambly sought to attend with a toilet seat - am I permitted to review the transcript of that direction's hearing, and some of the matters that were put on that occasion by Mr Hambly in a sentence proceedings? Can I have regard to those subjective matters?
4. And further: HER HONOUR: ...there was an attendance by Mr Hambly at the registry last week, and Mr Hambly sought to hand over his passport, understanding that he was required to hand in his passport, and registry, I'm advised, told him that they had no basis for accepting the passport. These are the matters that are weighing upon me in my current reflection about what's lawful and what's contumacious. The absence of legal representation, perhaps, putting it kindly, naive, or not so kindly, misguided understanding of the Court's processes might lead more in the direction of intentional rather than contumacious.
5. Mr Coffey for Council responded (emphasis added): COUNSEL: ...If I could characterise it as this, when Mr Hambly was before your Honour sitting as a list judge, he was very animated, with respect, in fact, did truly believe the matters that were putting before your Honour. I don't think that was an attempt to obfuscate his responsibilities, but he does genuinely believe that the matters that he presented to your Honour were of relevance. Your Honour might take those matters [into] account on submission in terms of his state of mind, and I think in these circumstances your Honour would not be persuaded to make a finding of contumacious disregard of the orders, but certainly they are wilful. He knows about them, and he's made active decisions, rightly or wrongly, to not comply, and that contempt is an ongoing basis.
6. Accordingly, having regard to the matters raised by the Court and the principles in Hamade, Mr Coffey withdrew Council's submission that the respondent's contempt was contumacious, and instead submitted that it was wilful (emphasis added): COUNSEL: ...On that basis...with having regard to the exchange that I've had with your Honour, I withdraw the submission that it's contumacious, and...your Honour would be satisfied beyond a reasonable doubt that it's wilful. In my respectful submission - just to go back to your Honour's earlier question - you would be entitled to have regard to the transcript of the directions hearing before you for the purpose of identifying this relevant point about whether or not it's wilful or not.

Conclusion in relation to characterisation of the contempt

1. I find, beyond reasonable doubt, that the respondent's contempt was intentional, rather than contumacious, as was ultimately accepted by Council. In so finding, I have regard to the fact that Mr Hambly was unrepresented at the directions hearing on 18 August 2023, and appears to have proceeded on a misguided understanding as to the Court's processes. However, I find, as submitted by Mr Coffey, that Mr Hambly knew of the Class 4 orders made by the chief judge on 26 August 2020 and made active decisions not to comply with them.

Application of the Wood factors

1. In determining an appropriate sentence for the respondent's contempt, I proceed to consider the Wood factors.

Seriousness of the contempt

1. Council accepted that it bears the onus of proving any facts and circumstances that aggravate the seriousness of the contempt. Council submitted that the contempt was the result of "intentional acts undertaken by the [r]espondent as deliberate acts of defiance". The Class 4 orders made by the chief judge on 26 August 2020 - namely that the respondent (a) cease using the unauthorised structures on the land for the purpose of human habitation; (b) remove all the unauthorised structures from the land; and (c) reinstate the land to the condition or state it was in immediately before the unauthorised structures were erected on the land - were to be complied with by no later than three months from the date of the Class 4 orders; that is 26 November 2020. As at the date of the contempt hearing on 10 July 2023, the respondent had been in contempt for a period of 2 years, 10 months and 14 days. As at the date of hearing on sentence, the respondent remained in contempt of the Class 4 orders made by the chief judge on 26 August 2020.
2. Council submitted that the respondent's conduct could "only be described as that which demonstrate a total disregard for his obligations, the jurisdiction of the Court and potential consequences for failing to comply". In assessing the objective seriousness of the contempt associated with the failure to cease using, and the failure to remove, the unauthorised structures on the land along with the failure to reinstate the land to the condition or state it was in immediately before the unauthorised structures were erected on the land, it was appropriate to have regard to the judgment of the chief judge in the Class 4 proceedings where his Honour provided a "firm background as to why it was necessary for the orders in the first place". At [78], the chief judge said: 78. The Council submitted that the orders sought by it aid in the enforcement of the statutory framework regulating planning and safety of residents in New South Wales for a number of reasons: (a) The unauthorised structures do not satisfy the requirements under Part 3.7 Fire Safety and Part 3.8 Health and Amenity of the Building Code of Australia 2016 (Volume 2) as detailed in the letter from Bartier Perry to the Respondent dated 28 February 2019 (see Annexure "A" to the Affidavit of Laura Raffaele dated 16 October 2019). (b) There is also no record of an adequate effluent disposal system on the Subject Properties. (c) The Subject Properties also fall within the Category 1 Bushfire Zone , posing a high risk to the safety of the occupants of the unauthorised structures should a fire occur (see Folio Number 115 behind Tab 4 of the Applicant's Bundle of Documents for a copy of Council's Bushfire Prone Land Map). (d) The Subject Properties fall within a high-risk flood zone precinct, posing a high risk to the safety of the occupants of the unauthorised structures should a flood occur (see Folio Number 117 behind Tab 5 of the Applicant's Bundle of Documents for a copy of Council's Flood Prone Land Map). (e) The unauthorised structures may impact on the capacity for the storage of floodwaters in the flood zone. (f) The unauthorised structures may impact on the behaviour of floodwater flows within the floodplain.
3. Council submitted that "[t]he risk of bush fires or flooding cannot be minimised, particularly because of the effects of climate change, but also what is well known by the community and the Court in terms of the devasting consequences of flooding and bush fires in this precise geographical region over the past few years". Further, that the Court "could comfortably find that the contempt falls at the upper end of objective seriousness", when taking into account "the circumstances of the defiance to comply with the removal of the structures, the substantial period of time (which is ongoing) that the breach of the orders has occurred along with the potential risks and adverse consequences that the original orders seek to remedy."
4. In relation to the failure to pay the applicant's legal costs of the Class 4 proceedings, Council said that the respondent had not "engaged in any communication" with Council concerning an arrangement to comply, or had "alternatively suggested that he is impecunious". It is therefore open to the Court to find that consistent with the deliberate contempt of failing to cease the use of and to remove the structures and return it to land to its earlier state, the failure to pay Council's costs is "an act of defiance to the jurisdiction of the Court. It is objectively serious and falls just below the mid-range". In relation to the costs order, Council submitted that "[i]t is important to acknowledge that [the] purpose of ordering legal costs is compensatory in nature and is to have the effect of putting the [a]pplicant back into the position before being required to bring these proceedings. The public funds expended may have been available for other purposes".
5. In relation to the seriousness of the contempt, I find the respondent, by his conduct, as submitted by Council, to have demonstrated a complete disregard of his obligation to comply with the orders of the Court. The respondent, notwithstanding the orders of the chief judge, has failed to cease using, and to remove the unauthorised structures on the land, and to reinstate the land to the condition or state it was prior to the erection of the unauthorised structures. That failure is ongoing.
6. I find that the contempt falls at the upper end of objective seriousness.

Awareness of the consequences and actual consequences

1. Council submitted that the respondent was aware of the relevant Court orders, and that his conduct which constitutes a breach of the orders of the Court "continues to present significant risk" for the persons who occupy the "unlawful structures". The actual consequences were submitted to be of "high seriousness" for the following reasons: ...this state has experienced a significant flooding inundation over the last couple of years, and Riverstone falls within that particular area. Additionally, the Riverstone area falls within a high bushfire risk zone, but concerns of council is that these particular structures provide a place for persons to occupy, which do not comply with relevant planning controls, and also prevent emergency services, whether it be a flood or bushfire, to attend and assist. That's why we say it's a high risk. Not just simply because someone's built a structure, and they don't have planning approval, this one goes one step further, there is a protection of life responsibility of council here...
2. I find, as submitted by Council, that the respondent's conduct in the breach of the orders of the orders of the Court continues to present significant risk for the persons who occupy the unlawful structures. The actual consequences are of "high seriousness". The respondent was aware of the Class 4 orders of the chief judge made on 26 August 2020.

Committed in the context of serious crime

1. Council did not contend that the contempt was committed in the context of a serious crime. I do not have regard to this factor in my determination of sentence.

Reason for contempt

1. Council submitted that as the respondent had not participated in the contempt proceedings, the precise reason for the contempt was unknown. Council said there was "no evidence", for example, of whether the respondent "has been able to cease using and remove the unlawful structures, or return the land to its original state, because of a personal physical impediment, the absence of money to fund the required works or some environmental or geographical factor that prevents the works from being completed".
2. There is no evidence before the Court capable of establishing any reason for the contempt.

Benefit to the contemnor

1. An aggravating factor in relation to contempt includes whether the contempt was committed for financial gain or was commercially motivated. [14]
2. Council submitted that the respondent continues to utilise the land for unlawful development, being residential occupation, without having applied for and been granted development consent. The Court "can be satisfied that the respondent has avoided the costs associate[d] with such an application to the applicant, but also the relevant specialist experts who are required to provide various reports eg. bush fire or flooding experts". Accordingly, there was "a substantial financial gain to the respondent".
3. I find, as submitted by Council, that financial gain to the defendant is an aggravating factor in relation to contempt.

Contrition and apology

1. Council submitted that as the respondent has declined to participate in the contempt proceedings, he is not entitled to any mitigation or benefit connected through contrition, remorse or an apology.
2. In relation to contrition and apology, I have regard to the respondent's appearance at a directions hearing before me on 18 August 2023. The transcript records that the respondent said "I will be pleading not guilty", and that "I'm seeking to have this case - well actually get my day in court for procedural fairness". On that occasion, I made orders giving the respondent an opportunity to put on an application with supporting evidence for the contempt judgment to be set aside. The respondent did not make any such application in a form capable of being accepted by the Court. [15] The respondent also did not appear at the hearing on sentence.
3. Accordingly, I accept Council's submission that there has been no apology or expression of contrition.

Character and antecedents

1. Council submitted that there was no material before the Court concerning the character or antecedents of the respondent.
2. I relation to character, I consider the following matters to be of relevance: 1. The respondent appeared at a directions hearing before me on Friday, 18 August 2023. On that occasion, when the matter was called, Mr Coffey informed the Court that the respondent was present, and that Mr Coffey had asked the respondent "not to bring an exhibit into the Court which appears to be a toilet seat from his property". The respondent subsequently appeared and raised an issue in relation to service of documents, and told the Court that he wished to plead not guilty to the contempt charges despite having already been found guilty in the contempt judgment of Pepper J on 13 July 2023. The respondent sought to ventilate a number of matters unfamiliar to the Court. I made orders allowing the respondent an opportunity to put on an application, supported by evidence, for the setting aside of Pepper J's decision of 13 July 2023. The respondent has not made any such application. 2. A number of emails sent to my chambers from a Mr Barry Valdeck, purportedly "for and on behalf of" the respondent, ventilating further matters such as "We believe that Blacktown City Council has arranged for the (documented) death of Derek Hambly on several occasions over the years"; "Blacktown City Council has repeated used our security dogs as weapons et. al."; and "A 4 wheel drive was used by a direct agent of Blacktown City Council. Again Derek's life was threatened." 3. The respondent is not legally represented, and has demonstrated a "misguided understanding of the Court's processes" through a number of matters, including an attendance to the Court's registry and attempted to surrender his passport. 4. Despite raising an issue as to service, the respondent on multiple occasions demonstrated that he has received email communications at the email addresses the subject of orders for substituted service. The Court communicated to the respondent via those email addresses when listing the hearing on sentence, and received emails in response from Mr Barry Valdeck. However, the respondent did not appear on 4 September 2023.
3. Having regard to these matters, I find the respondent's character to weigh against him.

Deterrence and denunciation

1. The Court is to take into account both specific and general deterrence in determining an appropriate sentence for contempt. [16]
2. Council submitted that general deterrence is a "significant consideration" in relation to the imposition of a penalty for contempt, [17] and that there is a particular need for general deterrence in relation to compliance with Court orders "to ensure that those who may be otherwise inclined to flout the authority of the Court are not tempted to do so and, therefore, the efficacy of the Court and the administration of justice is maintained". [18] The Court should give "significant weight" to the consideration of general deterrence here "to ensure that parties to litigation of any kind understand that there are consequences for failing to comply with orders of the Court". Robson J said in Inner West Council v Balmain Rentals Pty Ltd: [19] 60. I find that general deterrence is an important part of any sentencing calculation and particularly where the Court's orders were made in circumstances where the defendant actively participated in (and indeed agreed to) the entry of orders in the primary judgment; and where it was aware of the facts and matters with which Council was originally concerned. In relation to deterrence, both general and personal, I accept, and I note the comments of Kirby J in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] : Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, 'serious and lasting damage to the fabric of the law may result'… 61. This commentary is particularly apposite in relation to a breach of a court order relating to a prohibition in planning law, as the overall operation of the planning system depends on a high level of compliance. As I noted above, harm to the regulatory system is caused by a breach such as the present. In these circumstances, other similar businesses must be deterred from flouting both orders of a court and planning regulation in this way.
3. Further, Council submitted that consideration of specific deterrence is also appropriate in order to prevent the respondent from engaging in conduct, whether by act or omission, in breach of Court orders in the future. In circumstances where the respondent's contempt has not been purged, specific deterrence was appropriate "to send a clear message" to the respondent.
4. I accept Council's submissions in relation to both general deterrence, especially in circumstances where the respondent declined to participate in the sentencing hearing, as well as in relation to specific deterrence in order to "send a clear message" to the respondent in circumstances where his contempt remains unpurged.

Consistency in sentencing

1. The task of the Court is to seek even-handedness in sentencing for contempt. Of course, each case ultimately turns on its own facts, and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion. [20]
2. Council submitted that the Court has observed that the range of penalties imposed in cases of wilful contempt have generally been in the range of $7,500 to $50,000 with higher penalties (considered to be over $20,000) being imposed in cases "involving environmental harm o[r] the risk of environmental harm". [21]
3. Council referred to the following decisions submitted to be of assistance in ensuring consistency of sentencing: 1. In Hamade, the contemnor pleaded guilty to contempt of court in Class 4 proceedings concerned with the carrying out of work by way of unlawful excavation on residential land. The unlawful development had real environmental harm consequences to the surrounding neighbours. The contemnor failed to comply with orders made by consent to rectify the works. The period of contempt was in excess of 12 months and ongoing. Although the contemnor demonstrated some remorse, the Court imposed a fine of $17,000 and costs of $65,000. 2. In Bayside Council v Zein, [22] the contemnor pleaded guilty to contempt of Court in Class 4 proceedings concerned with the failure to comply with a development control order. The order had been made 2 years earlier. At the time of the hearing, the contempt was ongoing. Pain J imposed a fine of $20,000 and a periodic fine of $3,000 each month as long as the final orders were not compiled with. The costs were $40,000. 3. In Malass v Strathfield Municipal Council [23] (Class 1 proceedings) and Strathfield Municipal Council v Malass [24] (Class 4 proceedings), the contemnor pleaded guilty to contempt in both proceedings arising from the carrying out of development work contrary to an injunction and subsequently declining to provide access to Council to obtain evidence for the proceedings. Robson J found that the contempt was wilful and bordered on deliberate flouting. His Honour rejected the characterisation of the breaches as technical or inadvertent. Mitigating factors included that the contemnor was of good character, had not previously been before the Court, and had offered an apology, albeit 10 months after the commencement of the contempt proceedings. Robson J did not place significant weight on the financial circumstances of the contemnor. The contemnor was fined $20,000 in the Class 1 proceedings, and $20,000 and $7,500 in the Class 4 proceedings, producing a total fine of $47,500. The contemnor was also required to pay costs in both proceedings. 4. In Blacktown City Council v Saker (No 4), [25] following a hearing in which the contempt was established, the contemnor was sentenced for failing to comply with Court orders. The orders were that the contemnor engage a suitably qualified person to prepare a waste management plan and provide it to Council. Pepper J found that the contemnor was aware of the orders, but by their own admissions elected not to take any action. The contempt was found to be wilful and contumacious. Pepper J imposed a penalty of $40,000 and a suspended periodic monthly fine of $10,000 until the contempt was purged. 5. In Inner West Council v Balmain Rentals Pty Ltd, [26] the contemnor pleaded guilty to eight counts of contempt arising from the carrying out of prohibited development for the purposes of a vehicle hire business over two years. Robson J held that the contempt was wilful, but not contumacious, that it was objectively serious, and that it impacted upon the amenity of the surrounding premises. The contemnor was found to be aware of the consequences of its contemptuous conduct, and that it engaged in that conduct for commercial purposes. Mitigating factors included that the contemnor had given a qualified apology and that the operations constituting the contempt had ceased. The Court imposed a monetary penalty of $7,500 for each count of contempt, resulting in a total fine of $60,000. 6. Canterbury City Council v Ali Ahmed [27] involved non-compliance with an order restraining the use of a property outside of the hours of operation permitted by the relevant development consent. Robson J held that the contempt was wilful and of moderate seriousness. A mitigating factor was that the contemnors' compliance had improved since the substantive judgment. The Court imposed a fine of $15,000 on each of the contemnors. 7. Palerang Council v Banfield (No 2) [28] concerned non-compliance with orders to cease the use of and to demolish an unlawfully erected shed used as a residence by the respondent. Pepper J held that the contempt occasioned no actual environmental harm, and that it was wilful but not contumacious. At the time of sentencing, the contempt had been continuing for six months. A late plea of guilty was entered on the first day of the hearing of the contempt proceeding. Pepper J imposed a fine of $16,600, and ordered an ongoing penalty of $2,000 per month until the contempt was purged, but suspended the order for three months. 8. In Queanbeyan City Council v Sun (No 2), [29] the contemnor was in wilful contempt of orders to comply with conditions of its development consent to operate a steel fabrication business. At the time of sentencing, the contemnor had been in ongoing contempt for 10 months, although some steps had been taken to purge the contempt. Biscoe J found that there was no satisfactory explanation for the contempt. Limited actual environmental harm was occasioned by the contempt, but there was a risk that the contempt could result in more substantive environmental harm impacting upon public safety. The contemnor pleaded guilty shortly prior to the contempt hearing. Biscoe J imposed a fine of $20,000 and a further monthly fine of $10,000 as long as the contempt remained unpurged, suspended for the first two months.

Plea

1. The Court may apply a discount to a maximum of 25% where a guilty plea is entered at the earliest reasonable opportunity. [30]
2. In the present case, the respondent has not entered a plea of guilty. Accordingly, no discount is available to him.

Capacity to pay

1. A monetary penalty for contempt is subject to the provisions of the Fines Act 1996 (NSW) (Fines Act). [31] Pursuant to s 6 of the Fines Act, the Court is required to consider the means of the contemnor to pay any fine.
2. Council submitted that "the onus falls to the respondent to demonstrate his financial capacity with meaningful and objective documents in circumstances that he wishes to advance a positive case about his lack of capacity. He has not discharged his onus".
3. There is no evidence before the Court in relation to the respondent's capacity to pay.

Costs of the contempt proceedings

1. Council submitted that there was "no good reason" to depart from the ordinary rule in Class 4 proceedings that costs follow the event.
2. It is ordinary practice that "an order be made for indemnity costs to [the] successful applicant in contempt proceedings, unless there is some reason to depart from that position". [32] Further, "nothing should be done to deter a person from bringing a contempt to the notice of the court; and the risk of having to bear any of the costs will often be a real deterrent." [33]

Application of penalties

1. Section 694(1) of the Local Government Act 1993 (NSW) (LGA) provides in relation to the application of penalties: 694 Application of penalties (1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is - (a) to be paid to the council, and (b) to be allocated by the council to the council's consolidated fund.
2. Council submitted that "the language of s 694 is mandatory and that no discretion arises". The discretion found by the Court of Appeal in Hawkesbury City Council v Foster [34] has since been removed by amendments to s 694 of the LGA, where the amending legislation inserted the words "imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and" into the text of subsection (1). [35]
3. Council submitted that it is "important to consider the intent of s 694 which is to provide incentives to councils to regulate and prosecute unlawful conduct which, in the present context, is a contempt of Court arising out of the non-compliance with the planning regulatory system". Section 694 is "a vehicle for councils to obtain the necessary resources to engage in this regulatory activity". Such activity extends beyond the narrow compass of the provision of legal services and includes the resourcing of investigations and compliance programs which may not be amenable to compensation by an order for costs. [36]
4. I will make an order under s 694(1) that the penalty I will impose be paid to Council, and be allocated by Council to Council's consolidated fund.

Appropriate sentence

1. Council submitted that the appropriate sentence would be to impose a monetary penalty for the contempt, and in respect of the ongoing contempt, impose a suspended period monetary penalty for such time until the contempt is purged.
2. Having regard to the Wood factors, I find that the appropriate sentence is a fine in the amount of $20,000, and a periodic monthly fine of $2,000 until the contempt is purged, commencing on 31 January 2023.
3. In so finding, I have regard to the objective seriousness of the contempt (falling at the upper end); the conduct of the respondent which demonstrates a total disregard of his obligation to comply with orders of the Court, being of high seriousness; that the conduct of the respondent is intentional, and that the contempt is ongoing; that there has been a substantial financial gain to the respondent who continues to use the land for residential occupation; that the respondent has declined to participate in the contempt proceedings and demonstrated no contrition or remorse; the need, in the circumstances, for both general and specific deterrence; that the respondent has not entered a plea of guilty entitling him to a discount; and that there is no evidence before the Court in relation to the contemnor's capacity to pay.

Communications after the matter being listed for judgment

1. On Tuesday, 12 December 2023 at 12:35pm, my associate notified the parties that judgment would be delivered in this matter on Friday, 15 December 2023.
2. At approximately 2:15pm, my associate received a telephone call from a male person who said that he had received an email about judgment being delivered. He said that "judgment" was not defined, and he queried whether it meant that he will be imprisoned on the date of delivery of judgment. The person said to my associate words to the effect that he had never been served with any documents but got an order for substituted service, meaning the person serving the documents "couldn't find him". He said that the documents of service were left on top of a shipping container after the person "illegally trespassed" on his property. The person said that he thinks he has the right to cross-examine that person, but the person is "anonymous", and queried how can he cross-examine an anonymous person. My associate asked the person to put his concerns to the Court in an email, copying in all the parties.
3. At 7:34pm, my associate received an email from Barry Valdeck and copied to Barry Valdeck as follows: Dear Court, We still await a response for our written inquiry sent by Registered Signed and Returned Sign Post, August 2020. We believe waiting more than three years is unreasonable. We still require a written response. We instructed Justice Sandra DUGGAN to have "ground truthing". As conducted and arranged by the former NSW PLANNING MINISTER. We are assured that Universal Property Group gets that privilege. Why not the REGISTERED PROPRIETOR? We have been seeking the re-instatement of the Memorandum of Understanding signed by NSW PLANNING MINISTER, LANDCOM and VRMPD. We refer you to this document. We refer to Blacktown City Council V Doreen CAFE circa 1997 plus various cases. This case needs to be reopened as soon as possible, as Justice was never done. We refer you to the Australian High Court of Australia previously presented to the Court and we believe ignored. We have had our Security Livestock stolen, NSW POLICE REPORT pending. With Respect to legal Representation, we engaged, Mr Charlie PARSONS. We understand he failed to attend. Hence he be in Contempt of Court. Mr Charlie PARSONS discussions with us is privileged. An application to the High Court of Australia takes three to six months. We note negligence by Blacktown City Council and the NSW GOVERNMENT. Does the NSW LAND & ENVIRONMENT COURT deal in Negligence. We note, in our opinion, the NSW BAR ASSOCIATION maybe in breach of the Federal Government legislation, 1974, Restrictive Trade Practices Act. The Australian Constitution is also been breached. Please be advised we refer you to the Certificate of Title. We refer you to NSW Hansard. We refer you to the fact that under Current Zoning a HELIPORT is permissable. Hence ....... RIVERSTONE HELIPORT Pty Ltd refers. We still await the written approval for a HELIPORT as agreed verbal by Blacktown City Council. Conflict of Interest Malicious Damage Attempted Murder et. al..
4. On Wednesday, 13 December 2023 at 8:18am my associate confirmed receipt of Mr Valdeck's email and copied the legal representatives for Council into the email.
5. On Thursday, 14 December 2023 at approximately 9:15am, my chambers received a telephone call from an unidentified phone number. My associate answered the telephone and spoke to a person purporting to be "David Jacobson from Riverstone Heliports". The caller raised a "vexatious matter" which "the Court" was said to have been "pursuing for the last three years with no reply to registered post". My associate informed the caller that the best way to communicate with the Court is in writing by email, copied to all parties to the proceedings.
6. On Friday, 15 December 2023 at 8:53am, my chambers received a further email from Mr Valdeck attaching four images of a property.
7. There is nothing in the communications to my associate between Tuesday, 12 December 2023 and Friday, 15 December 2023 which causes me to reconsider the approach I will take to sentencing the respondent for his contempt of the Court in disobeying and otherwise failing to comply with orders made by the chief judge on 26 August 2020 in proceedings 323765 of 2019.

Orders

1. For the reasons above, I make the following orders: 1. The respondent, Mr Derek Hambly, is fined an amount of $20,000 Part 55, Division 4, rule 13 of the Supreme Court Rules 1970 (NSW) for his contempt of the Court in disobeying and otherwise failing to comply with orders 4 and 5 of the Court's orders made on 26 August 2020 in proceedings 323765 of 2019 (the contempt). 2. The respondent is fined a periodical monthly fine of $2,000, commencing on 31 January 2024, until the contempt is purged. 3. The respondent is to pay the costs of these contempt proceedings, commenced by notice of motion filed by the applicant on 10 November 2022. 4. Pursuant to s 694(1) of the Local Government Act 1993 (NSW), the Court confirms that the fine in order (1) and any fine arising from order (2) will be paid to the applicant, Blacktown City Council, by the Court on receipt of those amounts.

Endnotes

1. Blacktown City Council v Hambly [2023] NSWLEC 75 at [4]-[12] (Pepper J).
2. Hambly (No 2) at [23]-[24] (Pritchard J).
3. Hambly (No 2) at [29]-[33] (Pritchard J).
4. Hambly (No 2) at [15] (Pritchard J).
5. Hambly (No 2) at [29]-[33] (Pritchard J).
6. Land and Environment Court Rules 2007 (NSW) (LEC Rules) r 6.3.
7. Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3 (Witham v Holloway) (Brennan, Deane, Toohey and Gaudron JJ).
8. Witham v Holloway at 530 (Brennan, Deane, Toohey and Gaudron JJ).
9. [2023] NSWLEC 71 (Pepper J).
10. Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J).
11. [2017] NSWLEC 81 at [46] (Robson J).
12. Hamade at [32] (Pepper J) citing Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [62]; Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 at [20]-[24].
13. (1996) 86 A Crim R 183 at 185 (Dunford J).
14. Environment Protection Authority v Hanna (2013) 195 LGERA 383; [2013] NSWLEC 41 at [57] (Pain J).
15. Hambly (No 2) at [23] (Pritchard J).
16. Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [88]-[91] (Duggan J).
17. Citing Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 at [16] (Biscoe J); Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [117] (Pepper J); Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 4) [2013] NSWLEC 88 at [32] (Biscoe J); Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [42] (Robson J) at [31].
18. Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] (Kirby J).
19. [2022] NSWLEC 20 at [61] (Robson J).
20. Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 at [17] (Biscoe J); Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [27] (Pain J); Palerang Council v Banfield (No 2) [2012] NSWLEC 158 at [127] (Pepper J).
21. Burwood Council v Ruan [2008] NSWLEC 167 at [26]-[28] (Biscoe J); Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 at [38]-[41] (Biscoe J).
22. [2023] NSWLEC 42 (Pain J).
23. [2022] NSWLEC 131 (Robson J).
24. [2022] NSWLEC 132 (Robson J).
25. [2022] NSWLEC 80 (Pepper J).
26. [2022] NSWLEC 20 (Robson J).
27. [2016] NSWLEC 160 (Robson J).
28. [2012] NSWLEC 158 (Pepper J).
29. (2013) 195 LGERA 14; [2013] NSWLEC 6 (Biscoe J).
30. R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Liverpool City Council v Tirnova [2020] NSWLEC 110 at [164] (Moore J).
31. Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [45] (Robson J); Council of the City of Sydney v The Owners Strata Plan No 18820 [2017] NSWLEC 81 at [65] (Robson J).
32. Citing Pittwater Council v Martoriati [2013] NSWLEC 84 at [26] (Preston CJ); Blacktown City Council v Pearce [2013] NSWLEC 175 at [21] (Preston CJ); Blacktown City Council v Nitopi [2019] NSWLEC 40 at [220] (Moore J); Fairfield City Council v Camilleri [2019] NSWLEC 95 at [165] (Sheahan J); Tate v Duncan-Strelec [2020] NSWSC 52 at [31] (Kunc J); Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [75]-[77] (Preston CJ); Blacktown City Council v Saker (No 4) [2022] NSWLEC 80 at [119] and [121] (Pepper J).
33. EMI Records Ltd v Ian Wallace Ltd [1983] Ch 59 at 76; [1982] 2 All ER 980 at 991 (Megarry VC).
34. (1997) 97 LGERA 12; [1997] NSWCA 141 (Mason P, Meagher and Sheller JJA) (Hawkesbury City Council v Foster).
35. Local Government Amendment (Miscellaneous) Act 2002 No 40, Sch 1 [30].
36. Hawkesbury City Council v Foster at 16 (Mason P).

Amendments 20 December 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), administrative correction to order (4). 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: 20 December 2023