Contempt Proceedings are Brought Against Jason Saker
By amended notice of motion and statement of charge filed on 17 June and 30 July 2021 respectively, the applicant, Blacktown City Council ("the Council"), charges that the first respondent, Jason Saker, is guilty of contempt for failing to comply with orders 2 and 3 of the final orders made by the Court on 8 October 2018 ("the final orders").
Excluding attachments, the statement of charge is in the following form:
The Applicant charges, pursuant to Part 55 of the Supreme Court Rules 1970, that:
1 On 10 May 2018 in the Land and Environment Court of NSW in proceedings 2017/87722, Blacktown City Council v Jason Gabriel Saker & Ors, the Court made orders in the form annexed hereto and marked 'A' (May 2018 Orders).
2 On 13 July 2018, the May 2018 Orders were served personally on the First Respondent.
3 On 21 September 2018 the Land and Environment Court of NSW made orders pursuant to rules 1.12 and 36.5 of the Uniform Civil Procedure Rules 2005, that extended the time fixed in the May 2018 Orders (September 2018 Orders). A copy of the September 2018 Orders are annexed hereto and marked 'B'.
4 On 8 October 2018, the Land and Environment Court of NSW made orders that consolidated the May 2018 Orders, with the extension of time granted on 21 September 2018 (Final Orders). A copy of the Final Orders are annexed hereto and marked 'C'.
5 On 26 February 2020, the Final Orders were served personally on the First Respondent.
6 Order 2 of the Final Orders, provided as follows:
"Pursuant to s 9.46 (formerly s 124) of the [Environmental Planning and Assessment Act 1979], the First Respondent. within 14 days of the date of service of this order, as amended on 21 September 2018, upon the First Respondent, to engage a suitably qualified person to prepare a Waste Removal and Remediation Plan (the Remediation Plan) setting out the nature of the impacts caused by the importing, depositing and spreading of Fill Material onto [land described as Lot 134 in Deposited Plan 32148, known as 50 Shane Park Road, Shanes Park New South Wales 2747 ("the Land")] setting out the nature of the impacts caused by the importing, depositing and spread of Fill Material, onto the Land and a plan to remove the imported Fill Material, and remediate the Land to the condition of the Land prior to the importing and spreading of the Fill Material."
7 Order 3 of the Final Orders relevantly provided as follows:
"Pursuant to s 9.46 (formerly s 124) of the Act, that the First Respondent must:
i. a) provide the Remediation Plan to the Applicant Council for approval within 42 days of the date of service of this order, as amended on 21 September 2018, upon the First Respondent..."
8 The First Respondent is guilty of contempt of court in that, with full knowledge of the May 2018 Orders and the Final Orders, and in breach of Order 3 made by the Court, he has failed to provide the Remediation Plan required by Order 2 to the Applicant for approval as required by Order 3.
Particulars
From 8 April 2020, no Remediation Plan in respect of the Land was provided by the First Respondent to the Applicant.
The final orders mandated that (emphasis added):
TERMS OF ORDER MADE BY THE COURT
1 In accordance with the Applicant's Notice of Motion dated 21 September 2018, the Court amends the orders made in these proceedings on 10 May 2018 as follows:
The Court orders:
1. Pursuant to s 9.46 (formerly s 124) of the Act, that the First Respondent, by himself, his servants or agents be restrained from using the Land to receive Fill Material, and carrying out works being earthworks involved in the spreading of fill on Land zoned RU-4 Primary Production Small Lots.
2. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent within 14 days of the date of service of this the order, as amended on 21 September 2018, upon the First Respondent, to engage a suitably qualified person to prepare a Waste Removal and Remediation Plan (the Remediation Plan) setting out the nature of the impacts caused by the importing, depositing and spreading of Fill Material, onto the Land and a plan to remove the imported Fill Material, and remediate the Land to the condition of the Land prior to the importing and spreading of the Fill Material.
3. Pursuant to s 9.46 (formerly s 124) of the Act, that the First Respondent must:
a. provide the Remediation Plan to the Applicant Council for approval within 42 days of the date of service of this order, as amended on 21 September 2018, upon the First Respondent; and
b. if the Applicant Council advises the First Respondent that it does not approve the Remediation Plan, the First Respondent must, within 21 days of being so advised, submit an amended Remediation Plan which addresses any issues communicated by the Applicant Council regarding matters that should be addressed in the amended Remediation Plan.
4. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent within 7 days of the approval of the Remediation Plan by the Council (the Approval Date) to engage a suitably qualified person to undertake remediation works in accordance with the approved Remediation Plan.
5. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent to:
c. remove from the Land all Fill Material imported to the site;
d. remediate the Land in accordance with the Remediation Plan; and
e. cause the Fill Material to be transferred to a place that can lawfully receive that material for disposal within 90 days of the Approval Date.
6. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent to:
f. procure a receipt in relation to each consignment of the Fill Material transported from the Land,
i. each such receipt to be issued by the occupier of the place to which the Fill Material has been transferred for the purposes of this paragraph, and
ii. each such receipt to identify that place to which the Fill Material has been transferred and the quantity of Fill Material transferred for the purposes of this paragraph; and
g. provide each receipt procured for the purpose of order 6 to the Applicant Council within three days of each transfer.
7. The First Respondent to pay the Applicant Council's costs of these proceedings as agreed or assessed on an indemnity basis.
While the Court has had regard to the orders made on 10 May 2018 ("the May 2018 orders") and 21 September 2018 ("the September 2018 orders") for the purpose of this judgment, they are not reproduced herein.
[2]
Saker Unlawfully Undertakes Earthworks on the Land
The basal facts giving rise to the contempt proceedings are found in earlier judgments of the Court in this matter (Blacktown City Council v Saker [2017] NSWLEC 46 and Blacktown City Council v Saker (No 2) [2018] NSWLEC 71).
On 22 March 2017 the Council commenced civil enforcement proceedings seeking orders in respect of alleged breaches of s 76B (as it then was) of the Environmental Planning and Assessment Act 1979 ("the EPAA") relating to Saker's activities on land known as 50 Shane Park Road, Shanes Park, NSW ("the land").
On 24 March 2017 Moore J granted an interlocutory injunction in the proceedings on an ex parte basis restraining Saker, his servants, agents and invitees, from receiving fill material and undertaking earthworks involving the spreading of that material on the land (as described in Saker at [9]).
On 31 March 2017 at a hearing at which Saker appeared in person, Preston J held that the interlocutory injunction granted on 24 March 2017 should continue until further order (Saker at [14]-[21]).
The final hearing of the proceedings was held on 28 February and 15 March 2018 before Molesworth AJ. Saker failed to appear at that hearing.
In a judgment delivered on 10 May 2018, Molesworth AJ held that (Saker (No 2)):
1. the Council had made every conceivable and reasonable effort to ensure that Saker was properly and fully informed of every stage of the proceedings, including being provided with copies of all the evidence and other documents that were before the Court and that he had been afforded every opportunity to respond and participate in the proceedings (at [108]);
2. Saker had been, or ought to have been, aware that the matter had been set down for hearing and that he had been served with the substantive evidence of the Council in the proceedings. It was therefore appropriate for the hearing to continue in the absence of Saker (at [36]);
3. Saker had either carried out, caused to be carried out, or allowed to be carried out, development which was prohibited under the Blacktown Local Environmental Plan 2015, being the use of the land to receive fill material consisting of building waste, soil, rocks and other material ("the fill material") and the undertaking of earthworks involving the spreading of the fill material on the land (at [107]);
4. Saker's use of the land was described as "the prohibited receipt and deposition of fill material and thereafter associated earthworks" ("the development") (at [110]);
5. the development did, and had the potential to, cause environmental harm. In particular, the impacts of the development included (at [115]):
1. the land contained an endangered ecological community, namely, River-Flat Eucalyptus Forest on Coastal Floodplains of the New South Wales Coast, Sydney Basin and South East Corner Bioregions ("the EEC");
2. of the approximately 4,000m2 EEC that covered the land prior to the development an estimated 3,000m2 had been destroyed;
3. the deposition of the fill material on the land caused fragmentation of the EEC on it and on adjoining properties creating a vegetation gap with no canopy or understorey;
4. the remnant vegetation to the south of the land became isolated with adverse impacts on fauna movement;
5. the fill material reduced foraging habitat potential for threatened fauna species; and
6. due to the placement of fill into South Creek and Stoney Creek, the sediment caused water pollution through increased turbidity and high levels of total suspended solids. The unconsolidated sediments in the creeks had the potential to affect aquatic fauna assemblages, leading to fish kills, resulting in less suitable habitat for native species and causing a habitat more prone to invasive exotic pest species; and
1. a consequence of the development was that likely increased flood levels would be experienced up to 500m upstream of the land, with as many as 43 properties likely to experience increases in the 1% Annual Exceedance Probability flood levels of 30mm or more in one scenario ([116]).
On 10 May 2018 Molesworth AJ made the May 2018 orders and on 13 July 2018, a copy of those orders was personally served on Saker.
On 21 September 2018 his Honour varied the May 2018 orders to relevantly extend the time from which they took effect, that is, within a specified number of days from their date of service on Saker, rather than taking effect from the date of the making of the May 2018 orders (the September 2018 orders).
On 8 October 2018 Molesworth AJ made a consolidated set of orders that combined the May 2018 orders with the September 2018 orders in the form annexed to the statement of charge (that is, the final orders).
Since 8 October 2018, no remediation action plan has been provided to the Council in respect of the land.
[3]
No Adjournment of the Contempt Proceedings
Saker appeared before the Court as an unrepresented litigant when the Court set the motion down for hearing and made timetabling directions on 30 July and 20 August 2021, none of which Saker complied with. These directions included the filing and serving of any evidence by him in response to the contempt charge.
Saker did not, however, appear when the matter was listed for mention on 30 November and 6 December 2021.
When the hearing of the notice of motion commenced on 10 December 2021, Saker appeared in person but immediately sought an adjournment so that he could properly prepare for the motion. He asserted that he had only received the material that the Council was relying upon late on 9 December 2021.
In refuting this assertion, the Council relied upon the following affidavits in respect of service:
1. Katherine Mortimer affirmed 8 December 2021;
2. Jason Roberts sworn 28 February 2020 and 8 December 2021;
3. John Stewart sworn 16 July 2018;
4. Perry Gamsby sworn 25 June and 16 August 2021; and
5. Carlo Zoppo sworn 17 June and 29 November 2021.
Read together, these affidavits unequivocally demonstrate that Saker had been served with all of the evidence and other material sought to be relied upon by the Council at the contempt hearing - including the Council's summary of argument - well in advance of the commencement of the contempt hearing.
For these reasons, Saker's first adjournment application was declined. Nevertheless, the Court acceded to the Council's request (not opposed by Saker) that only the question of whether Saker was in contempt of the final orders be determined at the present hearing, with the question of appropriate punishment, if any, to be dealt with at a later hearing.
Initially, the conduct of the hearing was attempted virtually by MS Teams, but after considerable technical difficulties in the courtroom due to poor internet connectivity within the Court, this was abandoned and the Court proceeded to conduct the hearing by telephone. Problems, however, soon emerged when it became apparent that Saker did not have the full compliment of material sought to be relied upon by the Council before him. In particular, he did not have a copy of the final orders and the statement of charge.
Concerned about the fairness to Saker of proceeding with the contempt hearing in all these circumstances, the Court adjourned the hearing part-heard to 13 December 2021. Saker was again urged to obtain pro bono legal assistance. In the interim, the Council personally served a copy of all the material that it intended to rely upon for the purposes of order 1 of the notice of motion on Saker on 10 December 2021.
[4]
Saker is Guilty of Contempt
In addition to the findings made in Saker and Saker (No 2), the Council relied upon affidavits sworn by Lisa Stone on 24 May 2021 and by Roberts on 20 May 2021. Stone is the Team Leader, Record Services, Procurement and Governance at the Council. Roberts is employed as the Coordinator Development Compliance at the Council.
In her affidavit, Stone deposed to the Council's record keeping system and the searches that she had undertaken of the Council's records in order to locate any information concerning a remediation action plan that may have been submitted in respect of the land from 10 May 2018. None was located. Neither was any communication from Saker or any other documents relating to a remediation action plan in relation to the land.
The affidavit of Roberts was similar in content, namely, that he had searched the Council's property files and electronic record keeping system to locate any record of a call, communication or documentation concerning the remediation action plan in relation to the land. Again, nothing could be found.
The affidavit evidence was consistent with the unsworn testimony of Saker from the (albeit virtual) bar table that he has not prepared such a plan or engaged anyone to do so.
Saker commenced his submissions by stating that he was unaware of any order requiring him to prepare a remediation action plan and that he was, moreover, unaware of the statement of charge against him.
He conceded that when a copy of the final orders was served upon him on 26 February 2020 (see the Roberts affidavit dated 28 February 2020), he took possession of the envelope but did not open it and was neither aware of, nor read, its contents.
One explanation proffered by Saker for his ignorance was because his property had been flooded in February 2020 and again in March 2021, forcing him to move all of his belongings. The inundations, together with the pandemic, meant that he was "stressed" and in "no state to read any paperwork". Finally, Saker noted that while he was, at times, legally represented when the substantive proceedings which resulted in the making of the final orders were before the Court, this representation ceased when he could no longer afford to pay for it.
I do not accept this attempted exculpation by Saker. While Saker was not present when the final orders were made, he subsequently became aware of them on 26 February 2020 when they were personally served on him (irrespective of whether or not he read the documents), and thereafter, when they were served upon him again in a myriad of ways as the Council's affidavit evidence attests. The Council cannot be criticised for the delay in serving Saker with the final orders given the considerable difficulties that it experienced in locating Saker and effecting service (see the Zoppo affidavits). Saker's decision to engage in wilful blindness upon receipt of the final orders does not assist him.
Likewise, as the affidavit evidence relied upon by the Council plainly demonstrates, Saker has had ample notification of the statement of charge, both by way of service of the document upon him and by his presence in Court when the contempt proceedings were being discussed and timetabling orders made (for example, before Moore J on 30 July 2021 and before myself on 20 August 2021. During the latter appearance, the Court urged Saker to take the contempt charge seriously and to obtain legal assistance. An extended timetable for the hearing of the contempt notice of motion was crafted to enable this to occur).
In my opinion, Saker was aware of the final orders and has had sufficient time to comply with them. By his own admission there has been no attempt whatsoever by Saker to do so.
I also find that Saker was made aware of the Council's intention to commence proceedings if the final orders were not complied with (see the Zoppo affidavits referred to above annexing correspondence from the Council to Saker in this regard).
Finally, I find that Saker was aware of the statement of charge and the Council's notice of motion for contempt and has had sufficient time to prepare for this hearing. It is disingenuous of him to suggest otherwise. While I acknowledge that the two flooding events that Saker referenced would have been traumatic, the effects of which have no doubt been compounded by Covid-19, I also observe that the last flood occurred in March 2021, that is, over eight months ago. As for the pandemic, while not in any way seeking to diminish what has, and continues to be, a source of considerable distress and loss for an overwhelming majority of people, it remains a fact that Court orders have been and continue to be complied with and that listed hearings have proceeded with limited disruption in this Court. In any event, Saker has provided no evidence as to how the pandemic has impeded his ability to comply with the final orders or his preparation for the contempt proceedings. Furthermore, this is the first occasion at which these excuses have been ventilated by Saker.
During the hearing Saker indicated that he could obtain a remediation action plan by 17 December 2021 and sought another adjournment of the proceedings in order to do so, and therefore, to purge the contempt. But given the detailed nature of any remediation action plan which would involve, at the very least, a site visit to the land and various studies to be conducted by a qualified expert (or experts) in light of the unlawful development undertaken upon it by Saker, it is difficult to conceive that such a plan could be finalised and submitted to the Council within a week. The Court therefore again declined to adjourn the proceedings.
In short, Saker has not complied with the Court's orders made on 8 October 2018, in particular orders 2 and 3, which, because the final orders were served on Saker on 26 February 2020, required the engagement of a person to prepare a remediation action plan by 11 March 2020 (order 2) and the provision of that action plan to the Council by 8 April 2020 (order 3).
As the moving party, the Council bears the onus of establishing the contempt charges beyond reasonable doubt (Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [43] and Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 543-545 and 548).
In the absence of any compliance by Saker with orders 2 and 3 of the final orders, and no other argument having been raised by Saker against the charge, I find him guilty of contempt.
In Perdikaris Preston J articulated the following principles (at [39]-[42]):
39 Part 55 of the Supreme Court Rules 1970 (SCR), dealing with contempt, applies to proceedings in Class 4 of the Court's jurisdiction: Land and Environment Court Rules 2007 (LECR) r 6.3. The orders made by the Court…were made in proceedings in Class 4 of the Court's jurisdiction.
40 There is a distinction between civil contempt and criminal contempt. A civil contempt involves disobedience of a court order or breach of an undertaking in civil proceedings. A criminal contempt involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525 at 530, 538. Failure to comply with the Court's order in these civil enforcement proceedings, Mr Perdikaris demolish the garage and concrete slab, is a civil contempt.
41 There is also a distinction between a technical contempt and a wilful or contumacious contempt. The essential purpose of the distinction is to differentiate between conduct which, although constituting contempt, does not justify any punitive sanction, and conduct which does: Attorney-General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. In drawing this distinction, the intention of the person in committing the contempt is relevant (Bell v Stewart (1920) 28 CLR 419 at 429-432), although not necessarily determinative.
42 There is also a distinction between wilful and contumacious contempt, although the distinction cannot always be sharply drawn: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 501. Both wilful and contumacious contempt involve intentional non-compliance with a court's order. Contumacious contempt goes further than wilful contempt in that it also involves knowing defiance of the court's order and the authority of the court. Contumacious disobedience and defiance of a court's order renders criminal what would otherwise be civil contempt: Witham v Holloway at 538-539; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [130], [141], [2], [24]. For this reason, the purpose of punishment differs. In the case of merely wilful civil contempt, the purpose of punishment will be to ensure future compliance with the court's order. In the case of contumacious criminal contempt, as the person committing the contempt has evidenced their knowing defiance, the court will be concerned not only to ensure future compliance with the court's order, but also to sanction the past defiance: Ritchie's Uniform Civil Procedure NSW, [SCR Pt 55.13.2].
Although it is not necessary at this juncture to determine what type of contempt has been committed by Saker, the principles above are set out in this judgment for his information and benefit.
Given the potential gravity of the consequences of the finding of contempt, Saker is again urged to obtain, if he is able, legal representation to assist him at his sentence hearing.
[5]
Orders
In light of the finding of contempt against Saker, orders should be made for the preparation of the hearing on sentence. The formal orders of the Court are as follows (made with Saker's consent):
(1) Jason Saker is convicted of contempt and order 1 of the Council's amended notice of motion dated 17 June 2021 is upheld;
(2) orders 2 to 5 of the Council's notice of motion are stood over part-heard to 30 June 2022;
(3) the Council is to file and serve any evidence upon which it seeks to rely at the sentence hearing by 25 February 2022;
(4) Saker is to file and serve any evidence upon which he seeks to rely at the sentence hearing by 25 March 2022;
(5) the Council is to file and serve its written submissions by 22 April 2022;
(6) Saker is to file and serve his written submissions by 27 May 2022;
(7) costs of the preparation and hearing of order 1 of the notice of motion are reserved to the sentence hearing; and
(8) liberty to restore to the parties on three days' notice.
[6]
Amendments
07 July 2022 - Paragraph 42(1) of Blacktown City Council v Jason Gabriel Saker (No 3) [2021] NSWLEC 148 has been amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 on 7 July 2022, to read as follows:
[7]
42 In light of the finding of contempt against Saker, orders should be made for the preparation of the hearing on sentence. The formal orders of the Court are as follows (made with Saker's consent):
(1) Jason Saker is convicted of contempt and order 1 of the Council's amended notice of motion dated 17 June 2021 is upheld;…
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: 07 July 2022