[2014] NSWCA 382
Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91
[2009] NSWLEC 92
Northey v Bega Valley Shire Council [2012] NSWCA 28
Pham v Gall (2020) 102 NSWLR 269
Source
Original judgment source is linked above.
Catchwords
[2014] NSWCA 382
Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91[2009] NSWLEC 92
Northey v Bega Valley Shire Council [2012] NSWCA 28
Pham v Gall (2020) 102 NSWLR 269
Judgment (7 paragraphs)
[1]
Introduction
Following a hearing held on 5 and 10 July 2023 before Pepper J, at which Mr Derek Hambly (the respondent) did not appear, on 13 July 2023, Pepper J found the respondent guilty of contempt of Court for disobeying or otherwise failing to comply with orders 4 and 5 of orders made by the chief judge (Preston J) on 26 August 2020 (contempt judgment). [1] The orders of the chief judge made on 26 August 2020 were relevantly:
The Court:
(1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (EPA Act), Mr 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. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, 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. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures:
…
(d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and
(e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures).
(4) Orders Mr Derek Hambly, within 3 months of the date of the Court's orders, to:
(a) cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation;
(b) remove all the unauthorised structures from the land described in Order 1; and
(c) 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.
(5) Orders Mr Derek Hambly to pay the Council's costs of the proceedings.
The orders of Pepper J made on 13 July 2023 in the contempt judgment were relevantly that:
(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.
At a directions hearing on 21 July 2023, Robson J as list judge made the following orders:
1. The sentencing hearing for the Notice of Motion concerning the finding of Contempt of Court is listed for 1 day on 28 August 2023.
2. The Applicant is to file and serve any evidence it relies upon by 28 July 2023.
3. The Respondent is to file and serve any evidence it relies upon by 10 August 2023.
4. The Applicant is to file and serve written submissions concerning sentencing by 21 August 2023.
5. The Respondent is to file and serve written submissions concerning sentencing by 24 August 2023.
6. The Applicant is to write to the Respondent by email at lawya8@gmail.com and lawya4@gmail.com provide him a copy of the orders made today (21 July 2023).
7. The parties have liberty to apply to restore the matter on 3 days notice.
The sentencing of the respondent in relation to the contempt judgment was listed before me on 28 August 2023.
At a directions hearing before me as list judge on 18 August 2023, the respondent appeared and made submissions to the effect that he sought to set aside the orders of Pepper J made on 13 July 2023 finding the respondent guilty of contempt. Mr Coffey appeared for Blacktown City Council. The transcript records the following:
COFFEY:…Mr Hambly contends that he has not been served in relation to these proceedings generally. He wishes to plead not guilty in relation to the contempt. He says that he - whilst he doesn't have it with him today, he says on 5 July 2023 when the matter was first listed before her Honour Justice Pepper he was taken by ambulance to hospital. Of course those are relevant things that the Court should have regard to. I've only just become aware of those matters a moment ago but I could leave it to Mr Hambly to raise those properly with you.
…
RESPONDENT:…In respect of the matter I'd also like to correct that I was in an ambulance…On 5 July…Also on 5 July my Opal card would indicate that I was on my way here where I tapped on and tapped off at Central. I purchased a coffee which is - I have the receipt for that on that day. I then got an alert on my phone that there was two unidentified youths going to my property who can I quote Lord Denning where he said that personal matters takes priority over property, to which my mother has always informed me that I need to protect my sleeping child from two youths to which I have informed Riverstone Police of this, to which I had to turn around, around about 12 o'clock roughly on the fifth…So as Mr Coffey announced I will be pleading not guilty. I believe there's a thing called procedural fairness…
As far as the service of the documents I note that the Court has accepted substituted service…
So I'm seeking to have this case - well actually get my day in court for procedural fairness…
COFFEY:… In my respectful submission of course we have to establish service but in my respectful submission there has been substituted service orders made by the Court, including by Justice Robson as well, and those have been complied with. Justice Pepper was content and satisfied that service had been effected for the purpose of the liability hearing. So at an appropriate time I can bring that evidence to your Honour and bring those copies.
It surprises me that Mr Hambly says that there is an issue with service. If there was such an issue with service that doesn't deal with the communication that he has had with this Court personally including her Honour Justice Pepper's chambers as a result of things that have been served.
…
HER HONOUR:…You'll need to make an application to set aside the decision of Justice Pepper. You'll need to file evidence in relation to your application and to the extent you can assist the Court file submissions in relation to why you seek to have that judgment set aside…
And the evidence and the submissions need to persuade - seek to persuade me that the judgment of Justice Pepper should be set aside. That will be the purpose of the hearing on 28 August.
…as I've indicated and Mr Coffey accepts, you ought have the opportunity to put on an application to set aside the judgment of Justice Pepper and you ought have the opportunity to put on evidence as to what transpired to prevent you appearing before Justice Pepper and some submissions about that…
I subsequently made the followings directions:
(1) Defendant/Respondent to file any application to set aside judgment and orders of Pepper J finding the respondent guilty of contempt. Such application and evidence to be filed by no later than 4:30pm Thursday 24 August 2023.
(2) Applicant to file any evidence in relation to that application by COB Friday 25 August 2023.
On 24 August 2023, my chambers received an email from Mr Barry Valdeck from the email address riverstoneheliport@gmail.com "for and [on] behalf of" the respondent, in the following terms:
Since last Century no action has been taken by Blacktown City Council.
We note this is a joint venture.
A telephone call to EPA confirms that they are unaware of this SIGN and or one to many possible surveillance cameras. Relevant Legislation to be discovered.
We believe that Blacktown City Council has arranged for the (documented) death of Derek Hambly on several occasions over the years. 2020 refers.
Trevor Taylor has the knowledge and motivation. On 1st March 2018 he demanded and ordered Derek Hambly to commit a Crime, break and enter. Redacted council video evidence clearly shows this attempted crime.
Simba a red cattle dog is missing. A NSW POLICE STOCK THEFT REPORT is yet to be filed. Blacktown City Council has repeated used our security dogs as weapons et. al..
The owner received over three and half thousand dollar fine. This was intimidation but to Derek's daughter.
A 4 wheel drive was used by a direct agent of Blacktown City Council. Again Derek's life was threatened. Council documented indicate a direct link
We note
2019 Derek applied to the NSW Bar ASSOCIATION as directed by Justice Sandra DUGGAN.
Justice Sandra DUGGAN refused the Court to carry out Ground Truthing in Riverstone and Proston based on cost TO BE PAYABLE BY DEREK.
In effect, Derek lost prior to any court procedures.
At Mediation Laura agreed under current RU4 zoning a Heliport was acceptable. Hence Riverstone Heliport Pty Ltd. The remainderment of the documented Commercial Lease is now ours until at least the year 2600. That is, registered on the Certificate of Title.
The actions before the Court in Mr Derek Hambly's name are flawed.
We humbly request the 100% quashing of the Contempt of Court charge/s.
We require the Court to revisit other last Century cases that contain errors of fact.
Irani plus more which we save for JUSTICE TO BE DONE.
For and one Behalf of
Derek Hambly, Bachelor of Sydney et. al..
Derek requested that Scott Morrison be subpoenaed, possibly as a hostile witness. As Derek, the President of the VRMPD Inc was to see Scott in Canberra as Scott's first customer in 2008, September.
We note
2008 Derek Hambly stood for Ward One council elections where he was "warned off" by Blacktown City Council. That is possibly the etiology of this current case.
We note
George Augustus SALA Museum. Items date circa 1885.
We look forward to a written quashing.
We Note
In the practice note that costs should be minimised.
We note
Email to lawya8@gmail.com
Our forensic investigation as to the ownership, controller etc. lead to a City of Sydney building. The metadata ISP etc and possible VPNs are interesting.
We suspect Charlie PARSONS knows something.
Laura denies many somethings.
The respondent did not file with the Court any notice of motion pursuant to the orders made by me on 18 August 2023 seeking to set aside the orders of Pepper J made on 13 July 2023. Nor did he file any evidence to support any such application.
On 28 August 2023 the matter was mentioned before Duggan J as duty judge as a result of my unavailability to hear the sentencing proceeding listed before me on 28 August 2023. The respondent did not appear before Duggan J on that occasion. The proceeding was relisted on Monday, 4 September 2023 before me for hearing on sentence. Duggan J made the following orders:
1. Mr Dereky Hambly (the Respondent) to attend the NSW Land and Environment Court, 225 Macquarie Street, Sydney NSW 2000 on Monday 4 September 2023 at 10.00am and appear before a Judge of the Court to answer the charge of Contempt of Court.
2. The Registrar of the NSW Land and Environment Court is to take out a copy of these orders and affix the penal notice.
2A The Registrar of the NSW Land and Environment Court is to take out a copy of the orders made by Pritchard J on 24/8/23.
3. The Court notes that a failure by the Respondent to attend and appear before the Court, without reasonable excuse, may result in the Court issuing an arrest warrant.
4. The Applicant is to serve a copy of these orders and the penal notice and the orders referred to in 2A on the Respondent on or before 4pm on Thursday 31 August 2023.
5. The Applicant may effect service in accordance with:
(a) the orders varied by Pepper J on 5 July 2023;
(b) by sending a copy of the orders by email to lawya8@gmail.com and
lawya4@gmail.com (being email addresses that the Respondent has
communicated with the Chambers of Pepper J); and
(c) by sending a copy of the orders by email to riverstoneheliport@gmail.com.
6. The Applicant is to provide the Court an affidavit of service, concerning the service of these orders, and the orders referred to at 2A, at the hearing on sentence on Monday 4 September 2023.
7. If a copy of these orders have not been served on the Respondent by 3.30pm on Thursday 31 August 2023, the proceedings are listed for a directions on Friday 1 September 2023, at time to be confirmed.
8. On or before 4pm on Thursday 31 August 2023, the Applicant is to notify the Chambers of Pritchard J, by email, if the orders have been served. The directions hearing on Friday 1 September 2023 is to be vacated if a copy of these orders have been served.
9. The Court confirms the hearing on sentence is listed on Monday 4 September 2023.
10. The parties have liberty to apply on 24 hours' notice.
On 31 August 2023, I requested, through my associate, that the parties provide short submissions in relation to the source of the Court's power, if any, to set aside the judgment and orders of Pepper J made on 13 July 2023 finding the respondent guilty of contempt, or whether the matter instead needs to be the subject of appeal to the Court of Appeal or Court of Criminal Appeal. Council provided written submissions on Friday, 1 September 2023 in response to that request.
The proceeding was listed before me on Monday, 4 September 2023 for hearing in relation to sentence. On that occasion, there was no appearance for the respondent. Before proceeding to sentencing for contempt, I asked Mr Coffey for Council to address me on:
1. first, whether in circumstances where the respondent had not appeared the Court should proceed ex parte; and
2. second, the discrete issue of the Court's power to set aside the judgment and orders of Pepper J made on 13 July 2023 in relation to contempt of Court.
[2]
Service has been effected upon the respondent
In relation to whether the matter should proceed ex parte, Council read an affidavit of Ms Maja Podinic, solicitor employed by the solicitor for Council, sworn 1 September 2023, and affidavits of service of Mr Alexander Taylor, licensed process server, affirmed 18 August 2023 and 1 September 2023. Council submitted that in light of the evidence of Ms Podinic and Mr Taylor, the Court would be satisfied that substituted service had been effected and that the respondent was aware of the proceedings before me on 4 September 2023.
The affidavit of service of Alexander Taylor, affirmed 18 August 2023, confirmed service of the letter from Bartier Perry to the respondent dated 18 August 2023, and a sealed copy of written submissions filed 16 August 2023, at Lot 1 Section O Deposited Plan 1653, otherwise known as Milton Street, Riverstone; Lot 2 Section O Deposited Plan 1653, otherwise known as Milton Street, Riverstone; Lot 19 Section O Deposited Plan 1653, otherwise known as Milton Street, Riverstone; and Lot 20 Section O Deposited Plan 1653, otherwise known as Milton Street, Riverstone. Council's evidence also establishes that the respondent was notified of the orders made by Duggan J on 28 August 2023, and that on 29 August 2023, Council's solicitor, Ms Podinic, sent to Mr Hambly a letter via email, again using the email addresses "lawya8@gmail.com", "lawya4@gmail.com", and "riverstoneheliport@gmail.com", notifying the respondent of the orders made by Duggan J on 28 August 2023, including the penal notice attached to those orders given in accordance with r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), as well as orders made by me on 24 August 2023. I have also had regard to the circumstance that on 30 August 2023, Mr Barry Valdeck, using the email address "riverstoneheliport@gmail.com", responded to Ms Podinic's email requesting a "requirement of extra time in light of news three hours old". I have further had regard to the circumstance that on 31 August 2023 Ms Podinic's office received a copy of successful service reports confirming service at the above-mentioned lots of the letter from Bartier Perry to the respondent, dated 29 August 2023; a sealed copy of the judgment order made by Duggan J on 28 August 2023; and orders made by me on 24 August 2023.
I find in light of the evidence provided by Council that service of the orders made by Robson J on 21 July 2023 was effected upon the respondent by emails sent to the addresses "lawya8@gmail.com" and "lawya4@gmail.com". I am likewise satisfied that by emails sent to the same email addresses - namely "lawya8@gmail.com" and "lawya4@gmail.com" - from the offices of Council's solicitor Bartier Perry, service of the judgment of Pepper J of 13 July 2023, and the orders of Robson J made on 21 July 2023 was effected upon the respondent. I am further satisfied that the written submissions concerning sentence, filed by Council in accordance with order 4 of the orders of Robson J made on 21 July 2023, were served on the respondent, again by emails sent to the email addresses "lawya8@gmail.com" and "lawya4@gmail.com".
In all the circumstances, I am satisfied that the respondent, Mr Derek Hambly, is aware of the proceeding against him and the circumstance that the matter was listed before me on 4 September 2023 for the hearing of any application by him seeking to set aside the orders made by Pepper J on 13 July 2023, as well as to proceed to sentence today.
[3]
Setting aside the judgment and orders of Pepper J on 13 July 2023
In relation to the discrete issue of setting aside the judgment and orders of Pepper J made on 13 July 2023, Council tendered as Exhibit A the email from Mr Valdeck to my chambers received on 24 August 2023 and reproduced above at [7].
The principles in relation to setting aside, or varying, a judgment or order after it has been entered are set out in the written submissions of Council dated 1 September 2023.
As a general rule, apart from a small number of exceptions, judgments or orders which have been formally recorded or entered can only be varied or discharged on appeal. [2] The most recent recognition in New South Wales of this principle was by Ward P and Adamson JA in Proietti v Proietti, [3] convening the Court as two judges of appeal. Adamson JA, with whom the President agreed at [20], said that it is a fundamental principle that "no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up", citing, amongst other authorities, Bailey v Marinoff. [4]
The discretionary power of the Court to set aside an undefended judgment is in r 36.16(2)(b) of the UCPR, which provides that the Court may set aside or vary a judgment or order after it has been entered if:
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application of the judgment or order…
It follows, as submitted by Council, that the Court may set aside or vary a judgment or order after it has been entered if the judgment or order was given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order. That the judgment or order has been entered does not remove the Court's power to set aside or vary the judgment or order. The only question is whether the Court should exercise the power in the particular circumstances. [5]
Council took the Court to the relevant authorities in relation to the Court's power to set aside judgment where a party was absent or the judgment otherwise not defended. In particular, in Northey v Bega Valley Shire Council, [6] Barrett JA, sitting alone, held that the "central question is whether it is unjust to let the perfected order stand", [7] and that "to justify an order under r 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the perfected order to stand". [8] This approach was referred to by the Court of Appeal in Pham v Gall. [9] Council submitted, here, that the following principles in Pham v Gall were apposite:
1. In exercising its discretion under r 36.16(2)(b) of the UCPR, it is necessary to consider "whether any useful purpose would be served by setting aside the judgment" and "how it came about that the applicant became bound by a judgment regularly obtained". [10]
2. To succeed in an application under rule 36.16(2)(b), "the applicant does not have to show that a different result is likely should the judgment be set aside and a new trial ordered". [11] However, it is necessary for the applicant "to show that he or she has a good defence on the merits". [12]
3. "The more egregious the delay in seeking to set aside an undefended judgment, the greater the burden of persuasion that will be required of the applicant." [13]
4. Although the central question is whether it is unjust to let the effected order made in the absence of the defendant stand, "a possibility of injustice" is not a "sufficient basis to set aside an order made in the absence of the defendant where the plaintiff is in no respect in default." [14]
The effect of the authorities to which the Court was taken by Council is that I have power to consider an application to set aside the orders of Pepper J finding the respondent guilty of contempt of Court. Council accepted that if substance over form is to prevail, Exhibit A, being the email from Mr Valdeck of 24 August 2023 sent at 12.20pm to my associate, is capable of constituting an application to set aside. However, neither Mr Hambly, by himself or through Mr Valdeck who had sent the email to my associate describing himself as corresponding "for or on behalf of" the respondent, provided any evidence of the circumstances supporting any such application, even accepting one was properly made, notwithstanding orders made by me on 18 August 2023 directing the respondent to file any application and evidence to set aside the judgment and orders of Pepper J finding him guilty of contempt by 24 August 2023.
[4]
Conclusion and orders
I decline to exercise my discretion to set aside the orders of Pepper J finding the respondent guilty of contempt of Court. Notwithstanding Council's generous concession that Mr Valdeck's email of 24 August 2023 (Exhibit A) is capable of being characterised as an application to set aside, I do not accept that that email constitutes a proper application. There is no basis upon which I can find that Mr Valdeck's email communication should be accepted as a form of application to set aside the contempt judgment and orders of Pepper J.
I also accept Council's submission that the respondent has not demonstrated any genuine desire to prosecute an application to set aside the contempt judgment and orders of Pepper J. If I were to dispense with the formal requirement to file a notice of motion, the respondent has not filed or served any material that could provide a proper basis for the Court to consider why such an application should be determined in his favour.
Accordingly, having so determined, as communicated to the parties by my associate on Friday, 1 September 2023 at 4.46pm, I will now proceed to consider the question of an appropriate sentence for the respondent. That consideration will be the subject of separate reasons for decision.
The orders of the Court are:
1. Any application to set aside the judgment and orders of Pepper J made on 13 July 2023 finding the respondent guilty of contempt of Court is dismissed.
2. Judgment is reserved in relation to the sentence to be imposed on the respondent for contempt.
[5]
Supplementary submissions provided by Council
At the hearing on sentence before me on 4 September 2023, I raised two questions with Mr Coffey for Council:
1. the power of the Court to set aside or vary a judgment or order made by the Court differently constituted; and
2. cases concerning the sentencing of persons for contempt of Court in the absence of the contemnor.
In relation to the first question, in supplementary submissions filed on 5 September 2023, Council submitted that the Court could be comfortably satisfied that it is within power provided by r 36.16(2)(b) of the UCPR to determine an application to set aside or vary an order made by another judge of the Court. [15] I accept that submission.
In relation to the second question, Council identified several decisions where the Supreme Court and this Court have proceeded to hear and determine contempt proceedings, including imposing a sentence, in the absence of a respondent. Those authorities include the following.
In Sydney City Council v Li (No 2), [16] Preston CJ determined proceedings for contempt in the absence of two respondents. His Honour was satisfied that both respondents had been duly notified of the proceedings and the listing.
In Blacktown City Council v Saker (No 2), [17] Molesworth AJ determined proceedings for contempt in the absence of the respondent. His Honour was satisfied that the respondent had been duly notified of the proceedings and the listing.
In Council of the City of Sydney v Mae (No 2) at [33], [18] Sheahan J records that he had determined due to the serious nature of the contempt proceedings to decline to determine the application in the absence of the respondent, and issued a general arrest warrant. Ultimately, the arrest warrant was not executed as the respondent could not be located by the Sheriff. However, the respondent ultimately appeared and participated in the sentencing hearing.
I am satisfied that it is within power and otherwise appropriate for me to consider the sentencing of the respondent for contempt of Court, notwithstanding his failure to appear.
Nothing in the supplementary submissions of Council causes me to reconsider the orders made at [26] above.
[6]
Endnotes
Blacktown City Council v Hambly [2023] NSWLEC 75 (Pepper J).
Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 (Barwick CJ).
[2023] NSWCA 76 at [20] (Adamson JA, Ward P agreeing).
See Goater v Commonwealth Bank of Australia (2014) 88 NSWLR 362; [2014] NSWCA 382 at [12]-[20] (Basten JA, Gleeson JA and Sackville AJA agreeing).
[2012] NSWCA 28 (Barrett JA) (Northey).
Northey at [16].
Northey at [29].
(2020) 102 NSWLR 269; [2020] NSWCA 116 at [108], [110] (Payne JA, Leeming and McCallum JJA agreeing).
At [110] (Payne JA, Leeming and McCallum JJA agreeing).
At [98], [109] (Payne JA, Leeming and McCallum JJA agreeing).
At [100] (Payne JA, Leeming and McCallum JJA agreeing).
At [98], [109], [112] (Payne JA, Leeming and McCallum JJA agreeing).
At [108] (Payne JA, Leeming and McCallum JJA agreeing).
Citing Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 at [92] to [95] (Biscoe J).
[2012] NSWLEC 123 (Preston CJ).
[2018] NSWLEC 71 (Molesworth AJ).
[2012] NSWLEC 188 (Sheahan J).
[7]
Amendments
08 September 2023 - Added (No 2) to case name.
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: 08 September 2023