Blacktown City Council v Jason Gabriel Saker

Solicitors: Lindsay Taylor Lawyers (Applicant) Crown Solicitor's Office (Third Respondent) File Number(s): 2017/87722 Publication restriction: Nil

Saker Has Been Found Guilty of Contempt

1. By amended notice of motion filed 17 June 2021, the applicant, Blacktown City Council ("the Council"), sought an order that the respondent, Jason Saker, be found guilty of contempt and be punished for failing to comply with Court orders.
2. On 14 December 2021 Saker was found guilty of contempt in Blacktown City Council v Jason Gabriel Saker (No 3) [2021] NSWLEC 148.
3. The nature of Saker's contempt was particularised in the statement of charge, filed by the Council on 31 July 2021, which was relevantly extracted in Saker (No 3) (at [2]). In summary, Saker has failed to comply with orders 2 and 3 made by this Court in Blacktown City Council v Saker (No 2) [2018] NSWLEC 71 ("the final orders"). Those final orders required Saker to (Saker (No 3) at [36]): 1. engage a suitably qualified person to prepare a Waste Removal and Remediation Plan ("the remediation plan") with respect to land at Lot 134 of DP 32148, also known as 50 Shane Park Road, Shanes Park, New South Wales ("the land") by 11 March 2020; and 2. to provide that remediation plan to the Council by 8 April 2020.
4. In Saker (No 3) the Court found that Saker was aware of the final orders and had sufficient time to comply with them but, by his own admission, had not made any attempt to do so (at [32]).
5. This judgment concerns the appropriate punishment for Saker's contempt.
6. For the reasons below, I find that Saker's contempt was wilful and contumacious, and objectively serious. I therefore consider it appropriate to punish him for his contempt by imposing a monetary penalty of $40,000, and in addition, a suspended periodic fine of $10,000 is to be paid monthly until the contempt is purged. My reasons follow.

Saker Fails to Prepare a Waste Removal and Remediation Plan as Ordered

1. The basal facts giving rise to the proceedings for contempt are found in earlier judgments of the Court in this matter (Blacktown City Council v Saker [2017] NSWLEC 46, Saker (No 2) and Saker (No 3)). For convenience, the salient facts are summarised below.
2. Saker is the occupier of the land. The land is bounded to the north by a creek, known as South Creek and is traversed by a small tributary, namely, Stoney Creek. That land is zoned RU4 Primary Production Small Lots under the Blacktown Local Environmental Plan 2015 ("Blacktown LEP").
3. From late 2016 to March 2017, Saker caused or permitted the land to be used for the receipt of fill material and earthworks ("the development"), contrary to the Blacktown LEP, and therefore, in breach of s 76B (as it then was) of the Environmental Planning and Assessment Act 1979 ("EPAA").
4. On 22 March 2017 the Council brought Class 4 proceedings seeking declaratory and injunctive relief under s 124 (as it then was) of the EPAA regarding the unlawful development on the land.
5. In a judgment delivered on 10 May 2018, Molesworth AJ held that Saker either carried out, caused, or allowed to be carried out, unpermitted development on the land, which was prohibited under the Blacktown LEP and which constituted a contravention of s 76B of the EPAA (Saker (No 2) at [126]). The Court made orders for, among other things, the preparation of a remediation plan as detailed above (Saker (No 2) at [127]).
6. On 31 July 2018 a copy of those orders was personally served on Saker. Molesworth AJ varied those orders on 21 September 2018, to relevantly extend the time from which they took effect.
7. On 8 October 2018 Molesworth AJ made a consolidated set of orders that combined the orders made in May and September 2018, that is, the final orders.
8. Since that date, no remediation plan has been prepared or provided to the Council with respect to the land.

The Court Finds Saker Guilty of Contempt

1. The hearing for the amended notice of motion commenced on 10 December 2021 ("the December 2021 hearing"). Saker appeared as a litigant in person and sought an adjournment so that he could properly prepare for the motion. He asserted that he had only received the Council's material on 9 December 2021.
2. The Court rejected Saker's application, concluding 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 well in advance of that hearing.
3. Nevertheless, as a matter of fairness, the Court acceded to the Council's request (not opposed by Saker) that only the issue of whether Saker was in contempt of the final orders was to be determined at the December 2021 hearing and that the question of an appropriate punishment be dealt with at a later date. The hearing did not conclude and was adjourned part-heard to 13 and 14 December 2021. Saker was urged by the Court to obtain legal assistance, pro bono or otherwise.
4. As stated above, on 14 December 2021, the Court found Saker guilty of contempt.

The Conduct of The Sentence Hearing

1. In respect of the conduct of the sentence hearing the following observations are made: 1. Saker agreed that he had been served with a copy of all of the material that the Council would be relying upon during the sentence hearing; 2. Saker cross-examined Jason Roberts, the Coordinator Development Compliance officer at the Council who affirmed two affidavits on 13 April 2022 ("the 2022 Roberts affidavit") and 28 April 2017 ("the 2017 Roberts affidavit"), respectively; 3. Saker had not complied with any Court orders concerning the filing of evidence or submissions; and 4. Saker was nevertheless permitted to give sworn oral evidence, in respect of which he was cross-examined.

Applicable Principles in the Punishment of Contempt

1. The Council, as the moving party seeking an order that Saker be punished for contempt, bears the onus of establishing the contempt charged beyond reasonable doubt, irrespective of whether the contempt is civil or criminal, or wilful or contumacious rather than technical (Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 543, 545 and 548 and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [62]). The Council also bears the onus of proving other facts and circumstances that aggravate the seriousness of the contempt.
2. The Court has the same powers to punish contempt as those of the Supreme Court by reason of r 6.3 of the Land and Environment Court Rules 2007 ("LEC Rules") (see r 6.1 of the LEC Rules). Pursuant to Pt 55 of the Supreme Court Rules 1970 ("SC Rules"), the punishment for contempt includes a fine, imprisonment or both. There is no maximum penalty specified in either the LEC Rules, the SC Rules, or the EPAA under which the Court made the final orders which Saker is in contempt of.
3. The Court's powers of punishment are not restricted to the alternatives of imprisonment or fine, or both, as specified in Pt 55 r 13(1) of the SC Rules. The Court retains the flexibility to impose a criminal sanction appropriate to the particular circumstances (Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319-321). A contempt of court can be punished by any of a range of statutory penalties that can be imposed for a crime (NCR Australia Pty Ltd v The Credit Connection Pty Ltd [2005] NSWSC 1118 at [25]).

The Purposes of Punishing Contempt

1. The underlying purpose of the exercise of the Court's power to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced (Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [62], quoting Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; [2006] NSWLEC 797 at [20]-[24]).
2. Non-compliance with a court order necessarily constitutes an interference with the administration of justice (Witham v Holloway at 533-534). The penalty for contempt of the Court is a demonstration that the obedience of Court orders is important and the punishment ought to reflect the gravity of the contemptuous conduct.
3. In addition to the enforcement of the process and orders of the Court, punishment for contempt amounts to a vindication of the authority of the Court (Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; [1986] HCA 46 at 108 and Pannowitz (No 2) at [21]).
4. The nature and purpose of a penalty for contempt was stated by Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 as follows (at [149], footnotes omitted): 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". Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.
5. Furthermore, an appropriate penalty serves to deter both the contemnor and others who might be minded to flout the authority of the Court.
6. The 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 & Rappaport (No 3) [2013] NSWLEC 35 at [23]).
7. Civil contempt arises from disobedience of a court order in civil proceedings, while criminal contempt involves contempt in the face of the court or interference with the course of justice (Witham v Holloway at 530 and 538).
8. There is also a difference between technical and non-technical contempt which distinguishes between conduct which although constituting contempt, does not justify any punitive sanction, and conduct which does (Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367).
9. Contempt will be classified as technical where it is "casual, accidental or unintentional" (Pelechowski at [147]-[148]).
10. Contempt will be seen as 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]). Thus, wilful contempt amounts to disobedience that is more than casual, accidental or unintentional, but that 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]).
11. Comparatively, contumacious contempt is more grave and renders criminal what would otherwise be civil contempt because it involves conscious and deliberate defiance of the Court's orders and its authority (Witham v Holloway at 538-539, Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [2], [24], [130] and [141], Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 at [58] and Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33]).
12. In Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 Preston J opined upon the distinction between wilful and contumacious contempt as follows (at [42]): 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].
13. In Maniam (No 2) Kirby P (as he then was) observed (at 314A-C): A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately empathetic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or "excessive fines": see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695.

The Applicable Factors in Determining an Appropriate Penalty

1. There are no specific statutory factors that must be taken into account when punishing for contempt. The following matters are relevant in determining the appropriate penalty for contempt (Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 per Dunford J). These factors have been endorsed and applied by this and other courts on numerous occasions (see Arxidia Pty Ltd at [63], Palerang Council v Banfield (No 2) [2012] NSWLEC 158 at [83] and Perdikaris at [47]): 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to themselves of what they did; 3. the actual consequence of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of a 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 an apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and specific deterrence; and 10. the denunciation of the contempt.
2. Factors (c), (d) and (f) are not presently relevant.
3. There is ongoing debate regarding the applicability of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280 at [15]).
4. In Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 Basten JA cast doubt upon the application of the CSPA to contempt proceedings that engaged the civil jurisdiction of a court (at [33] and [46]-[55], Meagher JA agreeing at [139]).
5. In my view, the approach adopted by Robson J in Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 is preferred (at [44]): 44 While there is fertile ground for debate as to whether the Sentencing Act applies to civil contempt proceedings (Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280; (2016) NSWLR 88 at [15] (Meagher JA)), it has been applied generally (In the matter of Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 ('Queanbeyan') at [17] (Biscoe J); Hutley at [32]). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.
6. The CSPA is therefore applied by analogy. The purposes of sentencing are set out in s 3A of the CSPA as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
7. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court can have regard to. There is clear overlap between the factors identified in Wood v Staunton (No 5) and those set out in s 21A of the CSPA.
8. Relevantly applicable to the facts of these proceedings they are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (i) the offence was committed without regard for public safety, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender…

Saker's Contempt Was Wilful and Contumacious

1. The seriousness of the contempt is an important factor in determining the appropriate penalty to be imposed (Banfield (No 2) at [86]).
2. The Council argued that Saker's contempt was wilful up to and including the conclusion of the liability hearing, and thereafter it was contumatious.
3. In this context, the following findings were made in Saker (No 3) namely, that (at [28]-[35]): 1. Saker conceded that the final orders had been served upon him in an envelope on 26 February 2020, even though he claimed he was unaware of the envelope's contents; 2. having been made aware of the existence of the final orders, Saker decided to engage in wilful blindness upon the receipt of those orders; 3. Saker was aware of the Council's intention to commence the contempt proceedings if he did not comply with the final orders; 4. Saker had ample notification of the statement of charge after it was filed, and was urged by the Court when the matter was before it on 20 August 2021, to take the contempt charge seriously and to obtain legal assistance; 5. Saker was aware of the final orders and had sufficient time to comply with them prior to the liability hearing; and 6. Saker admitted that he had made no attempt to comply with the final orders.
4. Therefore, according to the Council, the most charitable view of Saker's conduct up to and including the liability hearing was that he wilfully disobeyed the final orders.
5. I accept this characterisation in respect of his conduct up to and including the directions hearing before Moore J on 20 August 2021. Up to this point, Saker knew of the existence of the final orders, but had not taken any steps to ascertain their content. Up to this point, Saker's conduct was deliberate but there was no specific intent to defy judicial authority, that is, it was wilful contempt.
6. After the mention, however, Saker was aware of what compliance with the final orders entailed. Did his failure to obtain a remediation plan and submit it to the Council amount to contumacious contempt? In my opinion, it did.
7. That Saker has continued to defy the Court's authority and has yet to obtain a remediation plan, indicates that his contempt from the date of the handing down of Saker (No 3) ought to be characterised as contumacious insofar as Saker knowingly and deliberately failed to obtain a remediation order.
8. This contumacious conduct has been exacerbated since the handing down of Saker (No 3) by Saker's refusal to comply with the final orders.
9. For example, during the sentence hearing Saker gave oral evidence that: 1. he recalled receiving paperwork from the Council in mid-2021 regarding the contempt proceedings (T23:35); 2. he remembered receiving paperwork from the Council which referred to the final orders, but he did not actually read that material, instead he "threw" it on his vehicle because he was preoccupied with cleaning up after a flooding event (T24:29-25:03); and 3. he admitted that he had no intention of ever complying with the final orders (T25:23-30, emphasis added): Q. And, indeed, you said you thought you could get one of those plans by 17 December last year. Do you recall that? A. Yes, I thought I could, yes. Q. Had you, subsequent to that time, taken any steps to obtain a remediation action plan? A. No, I haven't, and I'm not going to. Not when I'm getting flooded every year.
10. When asked why he was not going to comply with the final orders, Saker replied to the effect that there was no point because he had already been found guilty of contempt (T53:04-11): So, that's why I thought to myself, well, I don't need to provide a remedy plan if I'm already in guilty of contempt or whatever it is that I did. So, that's why I never planned on contempt. I don't see it as me being any - I was already in contempt, so, that's the way I seen it. So, I didn't need to provide one. You're saying that I had plenty of time, yep. I did maybe have plenty of time, yes, but, as Mr Roberts was handing me the paperwork said, "No, it's in Court now. So, I'm getting prosecuted for contempt of Court." So, I thought to myself - I didn't even think about the remedy plan anymore…
11. On any view, Saker's conduct after the determination of guilt amounts to knowing defiance of the Court's authority, or contumacious contempt.
12. I therefore find beyond reasonable doubt that up until 20 August 2021, Saker's conduct in failing to comply with the Court's final orders amounted to wilful contempt. However, thereafter, Saker's knowing defiance of the final orders elevated the seriousness of his contempt and rendered it contumacious.

Awareness of the Consequences

1. While Saker claims that he read neither the final orders when they were served upon him on 31 July 2018 and again on 26 February 2020, nor the contempt proceedings process when it was served upon him in mid-2021, it is tolerable clear that by 20 August 2021 when the contempt charge was before Moore J for mention - at which Saker was present - Saker was aware of the content of the final orders, he was aware that his non-compliance with those orders had resulted in contempt proceedings having been brought against him, he was aware that the contempt charge was serious and he was made aware that he should obtain legal assistance in respect of the charge.
2. Relevantly, at no point has Saker disputed that the final orders and the statement of charge and notice of motion were served upon him, rather, he claims not to have read the documentation.
3. There is no doubt whatsoever that in all the circumstances Saker was aware of what he was doing (or not doing, as the case is), was aware of the consequences of his inaction and, at the very least by no later than 20 August 2021, was aware that his ongoing conduct was in contempt.

Saker's Reasons for the Contempt

1. Saker's reasons for non-compliance with the final orders must be considered (Banfield (No 2) at [92]).
2. Saker deposes that the contempt was committed for the following reasons: 1. first, he has experienced flooding every year from 2018 to 2022, impacting his ability to comply with the final orders and causing him significant anxiety (T22:12-21). He has been unable to take steps to prepare a remediation plan because every time it floods he is preoccupied with the recovery process; 2. second, the fill currently on the land the subject of the final orders in fact mitigates the impacts of this flooding, and therefore, he does not "really feel the [sic] necessary to remove the fill" (T22:23-26); 3. third, Council management of Warragamba Dam has exacerbated the floods by releasing flood waters (T35-45); 4. fourth, the fill on the land was placed there initially by him but thereafter was caused by others, namely his neighbours, emplacing the fill on his land notwithstanding that Saker locked the gate and told them to cease this activity (T23:17-24); and 5. fifth, Saker submitted that he had failed to comply with the final orders because he has been suffering from mental illness (T22:50-23:04).
3. I do not accept Saker's proffered reasons for failing to comply with the final orders. There was no evidence put before the Court of any flooding of his land. On the contrary, the evidence of Roberts (see below) is to the effect that the deposition of the unlawful fill has exacerbated, and not ameliorated, any flooding that has occurred on the land. There is equally no evidence that water being discharged from Warragamba Dam is in any way responsible for the purported flooding on Saker's land.
4. In any event, even if it is accepted that Saker's property has flooded and that this has occupied some of his time, this does not explain why he has not prepared and submitted a remediation plan when the land was not inundated. At no point has Saker sought to have the final orders varied to accommodate his circumstances (T50:49-51:03). There is no doubt that the flooding was traumatic and disruptive, however, this does not derogate from the fact that Saker has known of the final orders for a significant period of time and has had every opportunity to comply with them.
5. The fact that the fill was placed there by others is immaterial to his compliance with the final orders. The final orders were directed to Saker, not his neighbours.
6. Finally, in the absence of any medical evidence verifying his claim to be suffering from poor mental health or an explanation as to the nexus between his asserted mental health incapacity and his failure to comply with the final orders, I reject his latter reason.
7. Saker's testimony is that he has not, and moreover, that he will not, comply with the final orders. The real reason, in my opinion, for his contemptuous behaviour is his defiance of the Court's authority.

The Environmental Harm Occasioned or Likely to be Occasioned by the Contempt

1. The consequences of the contempt, namely, whether there was harm occasioned to the environment by reason of it, is also relevant to its objective gravity (Banfield (No 2) at [99]).
2. The Council submitted that Saker's failure to comply with the final orders has caused actual environmental harm. It relied upon the following findings of Molesworth AJ in Saker (No 2) regarding the environmental harm occasioned by the development, namely, that (at [115]-[116]): 1. the land contains an endangered ecological community, the River-Flat Eucalyptus Forest on Coastal Floodplains of the New South Wales Coast, Sydney Basin and South East Corner Bioregions ("the EEC"). The development destroyed an estimated 3,000 m2 of the 4,000 m2 EEC that covered the land prior to that development; 2. 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; 3. the remnant vegetation to the south of the land became isolated with adverse impacts on fauna movement; 4. the development reduced foraging habitat potential for threatened fauna species; 5. the placement of fill into South Creek and Stoney Creek caused sediment to pollute waters through increased turbidity and high levels of total suspended solids. The unconsolidated sediments in the creeks had the potential to negatively impact aquatic native and create a habitat more prone to invasive exotic pest species; and 6. a consequence of the development was that likely increased flood levels would be experienced up to 500 m upstream of the land, with as many as 43 properties likely to experience increases in the 1% Annual Exceedance Probability flood levels of 30 mm or more in one scenario.
3. The Court, in punishing the contempt, is not concerned with the environmental harm occasioned by the unlawful development in late 2016 to March 2017 the subject of Saker (No 2). However, Saker's non-compliance with the final orders means that he has failed to prepare and submit a remediation plan to mitigate the effect of the unlawful emplacement of the fill on the land.
4. The affidavit evidence of Roberts demonstrates that there are ongoing environmental impacts on the land. This was not challenged by Saker in cross-examination.
5. Relevantly, Roberts conducted inspections of the land in 2016 and 2017, which are described in the 2017 Roberts affidavit. In the 2022 Roberts affidavit, he deposes to an inspection of the land on 16 March 2022 and provides a brief description and photographs of the state of the land as at that date.
6. According to Roberts, based upon a comparison of photographs taken during various site inspections, the volume of fill on the land in March 2022 was approximately the same as it was in March 2017, but with many of the areas of fill having become overgrown with vegetation.
7. Therefore, the land is in a comparable state in 2022 to its condition in 2017. The continuation of the unlawful development on the land absent substantial remediation, which can only proceed once a remediation plan is prepared and submitted to the Council, therefore gives rise to the risk of the potential adverse environmental impacts identified by Molesworth AJ in Saker (No 2) continuing.
8. As the evidence before the Court demonstrates, while the unlawful development remains on the land, there are ongoing environmental harms to the EEC, to aquatic ecosystems (notably Stoney Creek) and to the habitat of threatened species on the land. There is also ongoing potential environmental harm because the development, until remediated, poses a flood risk (Saker (No 2) at [116]).
9. These continued environmental harms are the direct result of Saker's failure to prepare and submit a remediation plan as ordered by the Court.

The Contempt Was Committed Without Regard for Public Safety

1. Whether the offending conduct demonstrates disregard for the safety of the public will depend upon the particular factual circumstances (Environment Protection Authority v Hanna (2013) 195 LGERA 383; [2013] NSWLEC 41 at [56]).
2. The Council contended that, due to the ongoing flood risks resulting from the development, Saker's failure to progress remediation in accordance with the final orders involved a disregard for public safety.
3. By not complying with the final orders Saker has failed to prepare a remediation plan which was ordered to include provision for the removal of the fill material on the land and measures to remediate that land to return it to the condition it was in prior to the development. Saker's ongoing non-compliance, therefore, means that the flood risks flowing from the development are ongoing and could, as found in Saker (No 2), affect as many as 43 properties upstream (at [116]).
4. This is a fact that he was made aware of by reason of the findings made in Saker (No 2). By refusing to comply with the final orders, even after the finding of guilt in Saker (No 3), I have no hesitation in finding to the requisite degree that he has committed the contempt without regard to public safety.

The Contempt Was Not Committed for Financial Gain

1. If the contempt was committed for financial gain or was commercially motivated, this elevates the objective seriousness of the conduct (Hanna at [57]).
2. The Council submitted that Saker committed the contempt for financial gain because in not preparing a remediation plan he saved expenditure that he would otherwise have had to incur, which amounted to a financial benefit. But this submission conflates financial benefit with financial motive, the latter of which was not supported by any evidence, let alone evidence to the requisite standard.
3. In my view, Saker's contempt was motivated by obtuseness and a deliberate and conscious desire not to comply with the law. He has refused to comply with the final orders not to save money, although it may be accepted that this advantage has flowed to him, but because he simply does not think that he should, believing that the unlawful development is both beneficial to his land (insofar as it assists with flooding) and because he is not solely responsible for the deposition of the fill on the land.
4. The Council was not able to provide the Court with any authority that an indirect financial benefit, as distinct from conduct motivated by profit, was a relevant aggravating factor for the purposes of punishing contempt. In almost all cases of non-compliance with court orders the result of a successful civil enforcement suit in Class 4 of this Court's jurisdiction, a cost saving is likely, but I do not consider this to be an aggravating feature, without more, of the contempt.

Conclusion on Objective Seriousness

1. Considering all of the objective circumstances of the contemptuous conduct, I find that Saker's wilful and contumacious contempt is of moderate objective seriousness.

Plea of Guilty

1. Saker did not plead guilty to the contempt, and therefore, this mitigating factor cannot be taken into account (Banfield (No 2) at [107]).
2. Although during the liability hearing he admitted that he had not complied with the final orders, this admission came sufficiently late that little, if any, utilitarian value was obtained by the admission.
3. Saker's lack of guilty plea is also relevant insofar as it indicates that Saker has not accepted responsibility for his actions (see below).

Public Expression of Contrition and Remorse

1. The Court, in determining whether a contemnor has genuinely expressed contrition and remorse, can take into account whether they have: 1. provided evidence that they have accepted responsibility for their actions (Arxidia at [85]); and 2. acknowledged any injury, loss or damage caused by their actions or made reparation for such injury, loss or damage (or both) (Arxidia at [83]).
2. Saker has neither apologised or provided a public expression of contrition (Wood v Staunton (No 5) at 185) nor has he acknowledged any wrongdoing, let alone the consequences of his contemptuous behaviour. Similarly he has not made any effort to purge his contempt. On the contrary, Saker stated during the sentence hearing that he has no intention of complying with the final orders, indicating a total lack of insight into the wrongfulness of his actions or the impact of his offending conduct.
3. Suffice it to say that this factor in mitigation does not apply to Saker.

Prior Convictions of Saker

1. Saker's antecedents are relevant to the Court's determination of an appropriate penalty (Wood v Staunton (No 5) at 185).
2. The Council tendered Saker's Criminal History - Bail Report of Jason Saker provided by the New South Wales Police Force on 18 May 2022.
3. Saker has an extensive criminal record, including multiple convictions for crimes of violence against the person, for the possession of prohibited firearms and two counts of assault against a police officer. While these prior convictions are not environmental offences (Perdikaris at [60]), Saker's prior criminal record plainly demonstrates that he manifests a continuing attitude of disobedience towards the law and that his contempt is not an uncharacteristic aberration.
4. In particular, Saker was convicted of contravening an apprehended violence order on two occasions, 13 July 2015 and 10 October 2015. That offending conduct may be properly characterised as arising from non-compliance with court orders, thereby reinforcing the above conclusion.

Good Character of Saker

1. The good character of Saker is a relevant factor (Wood v Staunton (No 5) at 185).
2. Saker did not tender any evidence of his good character.
3. In light of this evidential lacuna and Saker's extensive antecedents, which have accrued over the course of two decades, I cannot find that Saker is of good character.

The Likelihood of Saker Reoffending

1. The Council submitted that because Saker has not purged his contempt and has taken no steps towards complying with the final orders, meaning that the contempt is ongoing, the Court should therefore find that it is likely that Saker will reoffend.
2. The submission is, in light of the facts referred to above, irrefutable. When considered together with Saker's lack of remorse and his extensive criminal record, the conclusion that the likelihood that Saker will reoffend is high is irresistible.

General and Specific Deterrence and Denunciation of the Conduct

1. The Court is required to take into account both specific and general deterrence (Wood v Staunton (No 5) at 185 and Arxidia Pty Ltd at [88]-[91]).
2. With respect to contempt arising from a breach of a court order relating to planning law, Robson J's observations in Balmain Rentals Pty Ltd are apposite (at [60]-[61]): 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,Mand 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. The Council submitted that both general and specific deterrence are relevant in this case because Saker has committed wilful and contumacious contempt and because his ongoing failure to prepare and submit a remediation plan has caused continuing environmental harm.
4. The Court accepts that embedded in the determination of an appropriate penalty to be imposed on Saker for his contempt is an element of general deterrence to ensure that those who may be otherwise inclined to flout the authority of the Court are not tempted to do so, and therefore, that the efficacy of the Court and the administration of justice is maintained (Pelechowski at [149]).
5. I also find that specific deterrence is warranted. Saker continues not to take any steps to purge his contempt and he has given evidence to the Court that he does not intend to do so. The persistent nature and duration of Saker's non-compliance with the final orders means that there is a need for specific deterrence and that any punishment imposed should contain a coercive element.
6. Finally, the Court must impose a penalty that achieves the purpose of denouncing the contempt.

Consistency In Punishment

1. The task of the Court is to seek even-handedness in the imposition of a punishment for contempt (Banfield (No 2) at [128] and Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [27]). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Balmain Rentals Pty Ltd at [67]).
2. The Council relied on four comparable cases that are summarised below: 1. first, in Balmain Rentals Pty Ltd the respondent 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. The Court 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 respondent was found to be aware of the consequences of its contemptuous conduct, and moreover, that it engaged in that conduct for commercial purposes. Mitigating factors included that the respondent 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; 2. second, the respondent was in wilful contempt of orders to comply with conditions of its development consent to operate a steel fabrication business in Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64. At the time of sentencing, the respondent had been in ongoing contempt for 10 months, although some steps had been taken to purge the contempt. The Court 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 respondent pleaded guilty shortly prior to the contempt hearing. The Court 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; 3. third, Banfield (No 2) concerned non-compliance with orders to cease the use of, and to demolish, an unlawfully erected shed used as a residence by the respondent. The Court found 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 day of the contempt hearing. The Court imposed a fine of $16,600. The Court further ordered an ongoing penalty of $2,000 per month until the contempt was purged, but suspended the order for three months; and 4. fourth, in Burwood Council v Ruan [2008] NSWLEC 167 Biscoe J identified a number of cases where penalties were imposed for wilful contempt ranging from $7,500 to $50,000, with higher penalties (over $20,000) imposed in cases where environmental harm was occasioned or where there was a risk of such harm (at [26]-[27]).
3. I have had regard to these cases, noting their similarities and differences to the facts of the present proceedings, in determining the appropriate penalty to be imposed on Saker. Notably, in all four cases the nature of the contempt was merely wilful, whereas to the extent that the present contempt is partly contumacious, it is more objectively serious. In both Balmain Rentals Pty Ltd and Sun (No 2) the contempt occasioned environmental harm, which is similar to the present facts.

Capacity to Pay a Fine

1. Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
2. The Court must therefore consider the capacity of Saker to pay any fine imposed upon him (Banfield (No 2) at [125]).
3. Saker suggested that he was bankrupt and impecunious. However, the Council tendered a National Personal Insolvency Index extracted on 30 July 2022 to prove that Saker was discharged from bankruptcy on 28 March 2020.
4. Saker's discharge predates the contempt proceedings. There is, therefore, no evidence before the Court that Saker had, or continues to have, limited financial means that impacted, or will impact, his capacity to either: 1. comply with the final orders within the timeframes imposed by the Court; 2. purge his contempt by preparing a remediation plan; or 3. pay whatever monetary penalty the Court may impose.
5. In the absence of any evidence from Saker that he has limited financial means and in light of the evidence that he is not bankrupt, I am unable to find that Saker lacks financial capacity.

Costs

1. The Council contended that Saker should pay its costs of the amended notice of motion on an indemnity basis, noting that this is the usual order in civil contempt proceedings.
2. In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 Pain J helpfully collected a number of authorities where indemnity costs have been ordered in contempt proceedings (at [34]): 34 The issue then arises of whether costs ought be ordered on an indemnity basis. In Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225 Sheppard J at 233-4 identifies a number of circumstances where courts have held that a costs order ought be made on an indemnity basis. While not an exhaustive list of cases, which would be impossible to identify in any event, the award of costs on an indemnity basis against a contemnor is identified with the example of EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 referred to. Similar observations were made in Degmam Pty Ltd v Wright (No 2) [1983] 2 NSWLR 354 at 358 (Holland J). One example of the award of indemnity costs in contempt proceedings in this Court is Sutherland Shire Council v Sawyer [2000] NSWLEC 162. I consider that indemnity costs should be awarded to the Applicant.
3. In Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801 Sheppard J identified various circumstances where indemnity costs have been awarded (at 233-234): ... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
4. In Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 White J noted that indemnity costs are commonly awarded in civil contempt cases as an important sanction to mark the court's condemnation of the breach of its orders (at [49]).
5. In Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 Pain J also observed (at [19]): Costs are sought by the Council on an indemnity basis under general costs principles applying to contempt proceedings which apply in this Court. As observed in GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths, indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla suggests these are commonly awarded. Dal Pont states at 547 - 9 (footnotes omitted): In EMI Records Ltd v Ian Wallace Ltd Megarry VC observed that special costs orders are needed in cases of contempt because 'nothing should be done to deter a person from bringing a contempt to notice of the court; and the risk of having to bear any of the costs will often be a real deterrent'. Contempt proceedings, it is reasoned, serve a public interest, such that a person who successfully brings these proceedings should not be left out of pocket. It has been judicially remarked, to this end, that it is a 'common or usual practice' to order that the contemnor pay costs on an indemnity basis, and the case law reveals multiple examples of indemnity costs awards in this context. But there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of the curial costs discretion. A relevant consideration is whether, aside from the costs order, a penalty has been imposed for the contempt. If no other penalty is imposed, the court may be more inclined to employ 'a heavy order for costs as a means of imposing something in the nature of a sanction'. If, say, significant fines have been imposed, the 'penal' or 'deterrent' aspect of a special costs order may have less justification. Also relevant is the plaintiff's conduct and level of success. ... That the contemnor has subsequently purged the contempt will not by itself guard against a special costs order if the contemnor's conduct has already caused the opponent to incur costs in bringing contempt proceedings.
6. Whether a party has means to pay a costs order is not a relevant consideration as to whether a costs order should be made, including on an indemnity basis (Environmental Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 at [32] cited in Gerondal (No 6) at [15] and see Hunters Hill Council v Hakim [2010] NSWLEC 62 at [17]).
7. In this Court, indemnity costs have been awarded in a number of cases (see Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147, Pham (No 2), Liverpool City Council v Palerma Pty Ltd and Parilo (No 2) [2009] NSWLEC 45, Ku-Ring-Gai Council v Labordus [2009] NSWLEC 30, Hakim, Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) (2011) 186 LGERA; [2011] NSWLEC 246, Gerondal (No 6) and Tweed Shire Council v Sikiric (No 2) [2012] NSWLEC 119), although often without a detailed discussion of the applicable principles or the factors informing the Court's exercise of its discretion to award costs on that basis.
8. In my opinion, an order for costs on an indemnity basis is an important sanction to mark the Court's condemnation of Saker's contempt especially in circumstances where: 1. in the absence of an early plea of guilty, the Council has incurred considerable costs in proving to the requisite standard that Saker was in contempt; 2. Saker's insistence that he had not been served with documents by the Council, means that the Council has incurred significant costs in demonstrating service on him (Saker (No 3) at [17]); and 3. he has made no attempt to comply with the final orders and purge the contempt. On the contrary, he has told the Court that he will continue to defy them.
9. I therefore consider it appropriate to award the Council its costs of the contempt proceedings on an indemnity basis. Again the Court notes that there is no cogent evidence before it that Saker is unable to pay the costs of the proceedings, including on an indemnity basis.
10. Nevertheless, I take into account the order for legal costs as part of Saker's overall punishment (Banfield (No 2) at [126]).

Appropriate Punishment

1. Having regard to the objective seriousness of the contempt, the absence of any mitigating factors, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty of $40,000 is warranted.
2. The Council submitted that because Saker's contempt was wilful and contumacious, the Court should seek to obtain compliance with the final orders and sanction Saker's past defiance when determining the appropriate penalty to be imposed.
3. The Council therefore proposed, in order to maximise the coercive effect of any punishment, that in addition to any monetary penalty a periodic fine should be imposed until the contempt is purged.
4. The coercive purpose of a periodic fine to purge contempt of a court order was accepted by the High Court in Mudginberri Station (at [114]). Periodic fines have been imposed in decisions of this Court when punishing for wilful contempt (see, for example, Banfield (No 2) and Pre-Cast). In Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 the Court held that the relationship between the initial fine and the continuing periodic fine should be such that the former is not so large as to blunt the coercive effect of the latter (at [20]).
5. Saker's contempt is ongoing and he has expressly stated to the Court that he does not intend to take any action to purge his contempt. His ongoing unwillingness to prepare and submit a remediation plan means that there is an ongoing risk of flooding on several nearby properties.
6. These circumstances mean that it is appropriate to impose a periodic fine upon Saker in an attempt to ensure that he purges the contempt and reflects the gravity of the potential environmental harm occasioned by his continued non-compliance with the final orders.
7. I therefore find that the imposition of $10,000 fine per calendar month, commencing on 1 August 2022 and continuing for as long as the final orders are not complied with, is warranted.
8. However, I am willing to suspend the commencement of any order for a periodic fine for 60 days after the publication of this judgment to allow Saker a final opportunity to purge the contempt.

Orders

1. In conformity with the reasons given above, the Court makes the following orders: (1) Jason Saker is ordered to pay a fine in the sum of $40,000 to be paid to the Registrar of the Court within 28 days of the date of this judgment; (2) Jason Saker is fined $10,000 per calendar month to be paid to the Registrar of the Court, the first payment is to be paid on 1 August 2022 and monthly thereafter so long as the final orders of the Court made on 8 October 2018 continue not to be complied with or otherwise varied; (3) order (2) above is suspended for a period of 60 days after the publication of this judgment; (4) Jason Saker is to pay the Blacktown City Council's costs of the contempt proceedings on an indemnity basis; and (5) the exhibits are to be returned.

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: 06 July 2022