Blacktown City Council v Nitopi

The subsequent chronology

1. Despite the giving by Mr Nitopi, on 3 November 2017, of the two elements in undertaking (b), a considerable period of inactivity on Mr Nitopi's part then followed.
2. During the period until the functional commencement of removal of material from the site in July 2018, there was considerable exchange of correspondence between the legal representatives of the Applicant (Sparke Helmore) and those of Mr Nitopi (Hunter Lawyers). A summary chronology of this correspondence is set out in the table below: Date Source Details 16 January 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers Notes Consent Orders made by Moore J on 3 November 2017. 25 January 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers References lack of response to letter of 16 January 2018. Also informing of further inspection of the Site by the Council. 20 February 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers References lack of response to letter of 16 January 2018 and 25 January 2018, requesting evidence of compliance with undertaking. 21 February 2018 Letter from Hunter Lawyers to Spark Helmore Lawyers Apologises for delayed response. Notes Mr Nitopi is currently a victim of criminal activity and has left New South Wales on advice of the New South Wales Police Force. Notes Mr Nitopi is attempting to comply and will be seeking an extension of the undertakings 21 February 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers Notes Mr Nitopi's duty to comply with the undertaking regardless of physical location. Asks for evidence of Police advice to leave New South Wales. Asks for consent to question the Police. 5 April 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers References lack of response to letter of 21 February 2018. Informs of a Council site inspection of 4 April 2018.Informs that instructions have been given to commence contempt proceedings against Mr Nitopi. 10 April 2018 Letter from Hunter Lawyers to Sparke Helmore Lawyers Again notes Mr Nitopi is a victim of criminal offences and as a result has left New South Wales. Invites Sparke Helmore Lawyers to contact Senior Detective Vergopoulos to confirm this. Notes Mr Nitopi would like to be on site to supervise waste removal contractors. 16 May 2018 Email from Senior Detective Vergopoulos to Sparke Helmore Lawyers Outlined the criminal activity against Mr Nitopi and incidents at his residence. States that police did not advise any victim of the offences to leave their residences during police investigations 24 May 2018 Letter from Sparke Helmore Lawyers to Hunter Lawyers Notes that Council has commenced contempt proceedings against Mr Nitopi. Requests address for service.

1. The Applicant commenced contempt proceedings against Mr Nitopi on 22 May 2018 as a consequence of his failure to carry out that which he had undertaken to achieve for the cleaning up of the material on the site. This date requires some further consideration in the context of when (and why) Mr Nitopi commenced taking steps to have waste removal from the site actually commenced.
2. It is to be observed that, when the undertakings were given by Mr Nitopi, he was legally represented before the Court. There is no suggestion made on his behalf that Mr Nitopi did not understand the obligations he had assumed as a consequence of his giving of those undertakings to the Court.

Introduction

1. As noted above, the Applicant commenced these contempt proceedings against Mr Nitopi on 22 May 2018. The Consent Orders had attached, as is conventional, a penal notice pursuant to r 40.7(3) of the Uniform Civil Procedure Rules 2005 (UCPR). That notice included the following paragraph: TAKE NOTICE that if you disobey the Order or refuse to do any act required by the Order within the time specified in the Order, you may be liable to sequestration of property or imprisonment in addition to liability for a fine.
2. It is not in question that the entered orders have been served on Mr Nitopi.

Characterisation of the contempt

1. Contempt can be characterised in various different ways depending on, relevantly for these proceedings, the reasons why there has not been fulfilment of the obligations assumed by the undertakings given to the Court by Mr Nitopi. The two classes of contempt potentially engaged in these proceedings are contumacious contempt and wilful contempt.
2. Contumacious contempt is where there is a specific intention to disobey a Court Order or undertaking to the Court which evidences a conscious defiance of the Court's authority. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, at 315, Kirby P said: This class of contempt (contumacious) is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order. (Citations omitted)
3. Wilful contempt is where the disobedience is more than casual, accidental or unintentional, but is not contumacious.
4. Council does not submit that the contempt in this case is contumacious and the facts do not disclose an element of deliberate defiance of the Court Orders. Instead, the Applicant submits, and I accept, that the contempt is wilful in the sense that, while it did not reveal a specific intent to defy the authority of the Court, Mr Nitopi's conduct was not casual, accidental or unintentional.
5. This characterisation, that the contempt was wilful rather than contumacious, was accepted by Mr Doyle, counsel for Mr Nitopi, (albeit with the qualifying submissions, later discussed in more detail, that the pressures of the criminal acts directed against Mr Nitopi, and those of the intrafamilial civil litigation with which he was engaged separately, each provided a significant and proper basis to mitigate any penalty which might otherwise be appropriate for me to contemplate).

A custodial sentence is not appropriate

1. I later explain why the reasons advanced by Mr Nitopi for not commencing the removal process (including necessary pre-implementation planning) - after 2 February 2018 - lack significant merit.
2. As a consequence, given that Mr Nitopi was provided with the appropriate notice pursuant to the UCPR that he was exposed to the potential of a custodial sentence, I am not precluded from considering this sentencing option (as I advised Mr Doyle during the course of closing submissions), despite the agreement by the Applicant that the appropriate penalty to be contemplated was a fine.
3. However, although I gave that warning, I am satisfied that, unlike Mr Gordon's conduct in Lake Macquarie City Council v Gordon (2017) 228 LGERA 123; [2017] NSWLEC 122, Mr Nitopi's contempts, the subject of these proceedings, are not so overtly defiant as to warrant a custodial sentence.
4. In addition, unlike Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14 (Cumberland Council v Khoury), the site has been cleaned up and Mr Nitopi's contempt purged so there would be no benefit in a suspended sentence as no further works are required to be effected to produce the waste removal outcomes mandated by the two undertakings.
5. As a consequence, I am satisfied that the appropriate penalty to be imposed is a fine for each of the breaches of the undertakings given on 3 November 2017.

The application of the Crimes (Sentencing Procedure) Act 1999

1. In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340, at [33] to [39], Basten JA explained (Meagher JA agreeing) why the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) was not applicable to punishment of a contemnor. This decision arose in the context of the setting of the length of a custodial sentence having regard to the provisions of this legislation. This decision makes it clear that any formal application of the Sentencing Procedure Act would be an error of law.
2. The following 10 factors relevant to sentencing for contempt were identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (Wood v Staunton) at 185: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself or herself of what he or she did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt.
3. However, for the reasons I explained in Cumberland Council v Khoury, at [42], although the Sentencing Procedure Act does not apply to sentencing for contempt, it does provide, by analogy, a useful framework for consideration of the objective and subjective factors to which it would be otherwise mandated to have regard had the Sentencing Procedure Act in fact applied (see also Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19] and Blacktown City Council v Everson [2019] NSWLEC 4 at [17]).
4. Only a limited number of the matters set out in Wood v Staunton are relevant in the circumstances of these contempts. Those noted in (1), (5) and (7) to (10) are relevant. They are also factors which find parallels in the relevant provisions of s 21A of the Sentencing Procedure Act. As a consequence, I do not perceive any tension between the guidance given in Wood v Staunton and my having regard to the various relevant provisions of the Sentencing Procedure Act as providing a framework for dealing with these two acts of contempt.
5. It is in the context of the provision of an appropriate framework for analysis that I adopt, as a guide, the structure of the terms of s 21A of the Sentencing Procedure Act as providing a basis for my consideration of all the factors engaged in sentencing Mr Nitopi for the two charges of contempt to which he has pleaded guilty.
6. Mr Nitopi has pleaded guilty to each of the charges of contempt laid against him. Again considering, by analogy, the provisions of the Sentencing Procedure Act, Mr Nitopi is entitled to some degree of discount on the sentences which otherwise would arise to be imposed on him. The timing of his guilty pleas and the extent of amelioration of penalty arising from those pleas is later separately discussed.

The evidence

1. There was substantial documentary evidence in the proceedings. That given for the Applicant by Mr Roberts, a Development Control Officer employed by the Applicant, dealt with the factual situation of the site as at the dates when he inspected the site during the period between May and mid‑November 2018. That of Ms Leung, a solicitor employed by the Applicant's legal representatives, provided vehicles for the admission of letters, e-mails and other relevant documents into evidence. All of the material on behalf of the Applicant was admitted without objection.
2. Limited elements of Mr Nitopi's first and second affidavits (including several documents referenced that would otherwise have been imported into evidence) were not read. However, the four affidavits deposed by Mr Nitopi also brought into evidence a wide range of documents to which he referred in the body of those affidavits.
3. The affidavit evidence is listed below: 1. For the Applicant: * Mr Jason Roberts (17 May, 26 October and 13 November 2018); and * Ms Shirley Leung (22 May and 29 October 2018). 1. For Mr Nitopi: * Mr Giuseppe Nitopi (9 October, 10 and 21 December 2018 and 21 January 2019).
4. Two expert reports from Mr Andrew Kosciuszko, Mr Nitopi's environmental consultant, were also in evidence. The primary import of these documents was that they provided evidence that the entirety of the waste was removed from the site by mid-November 2018.
5. Of the providers of evidence, only Mr Nitopi was required to give oral evidence. He gave some limited evidence-in-chief and was then extensively cross-examined by Mr Boncardo, counsel for the Applicant.
6. It is appropriate to say that I did not find Mr Nitopi to be an impressive witness. Indeed, in a number of critical areas he was demonstrated to have made statements in his affidavit evidence that was at variance with the facts.
7. In at least one critical respect (relating to his concerns about waste removal vehicles depositing mud etc if permitted to leave the site loaded with waste in the aftermath of wet weather), this topic was not mentioned, at all, in his affidavit evidence. This was, in his view as expressed in his oral evidence, an important element as to why he said he was obliged to be present, personally, to supervise the removal of the waste from the site.
8. As a consequence, its absence from his affidavit evidence, coupled with his demeanour in the witness box and the overall flavour of the remainder of his evidence when confronted with difficult (for Mr Nitopi) questions arising from his affidavit evidence, I am satisfied that, when confronted with such difficult propositions or actual contradictions between his evidence and the objective facts, that he sought to tailor his evidence to his own greatest advantage with respect to events which occurred, primarily, after 2 February 2018.
9. However, as later explained, this criticism is not solely confined to that. I am also expressly satisfied, that his assertion that he was advised by New South Wales Police to relocate was not what occurred.
10. These various aspects of conflicts, between elements of his evidence and that which I am satisfied actually took place, means I am unable to accept the accuracy of his evidence on a number of critical matters advanced on his behalf as being explanations for and exculpatory factors to be weighed in his favour in my assessment of the appropriate penalties to be imposed.
11. The unsatisfactory nature of his written and oral evidence is reflected, particularly, in the starting penalty I am satisfied is appropriate to be imposed for the breach of the second of the two undertakings he gave the Court for removal of waste from the site.

Dissecting the time periods for Mr Nitopi's contempts

Introduction

1. An examination of the evidence in these proceedings makes it clear that there is a series of distinct periods requiring consideration as part of this sentencing analysis. Those periods are:

• the period until 31 December 2017 (this being the date by which Mr Nitopi had undertaken to remove half the waste from the site);
• the period from 31 December 2017 to 2 February 2018;
• the period from 3 February to 31 March 2018 (this latter date being the date by which Mr Nitopi had undertaken to remove the entirety of the waste from the site; and
• the period from the end of March 2018 until mid-November 2018 (mid‑November 2018 being the time by which the removal of the entirety of the waste from the site was finally effected).

Prior to 31 December 2017 (the period of the criminal acts against Mr Nitopi)

1. It is accepted by counsel for the Applicant that, during the period from July 2017 until the identification and arrest of the organisers of the acts directed at Mr Nitopi and his family, there were a range of criminal acts directed at him and his children and on other residents in the street where his Sydney home is located.
2. Mr Nitopi's affidavit evidence described the nature of the criminal acts which had been perpetrated on him (and in his street) and on other members of his family. In his affidavit of 9 October 2018, his evidence was: The break ins and attempted break ins between July 2017 and December 2017 33 From July 2017 to December 2017 there were four incidents involving attempted or actual break ins at my residential home at Drummoyne. Criminal charges were laid against others in relation to these incidents. Annexed hereto and marked "o" is a copy of the Court Attendance Notice detailing the four incidents. As I explain below, these incidents have a connection to my participation the litigation I have described above. 34 Three of the incidents at my home occurred before I gave the Undertaking to the Court, however the pattern of the incidents nevertheless contributed to my response to the final incident in December 2017 and are part of the reason I did not give the required attention to complying with the Undertaking. 35 On 8 June 2017, I was awoken at 2:30am by four men trying to break into my home through the front door and who called out that they wanted to talk to me without explanation. I did not know the men. I called the police and the men left. I was in fear for my safety and the safety of my children who were at home with me. 36 On 22 July 2017, my home was forcibly broken into and ransacked. Personal property of mine was stolen, along with files containing documents relating to the family estate matter. 37 Between 15 August 2017 and 17 August 2017, I discovered that someone had again tried to break into my home by jimmying a window and my front door. There was damage to the frame near the door lock and the window was partially forced open. 38 On 9 December 2017, my home was forcibly broken into and the remainder of my files containing the Court documents for the Supreme Court matters I was involved in were stolen, along with other valuables and personal property. Also stolen were the files containing all of my quotes, and other information I had gathered in order to prepare to clear the Site in accordance with my commitments in the Undertaking.
3. In addition, in his affidavit of 10 December 2018, he also said: BREAK-INS AND MY LEAVING THE STATE WITH MY SON 39 I set out in my October Affidavit how I experienced break ins to my home in 2017 where extensive quantities of my records were stolen. 40 The first break-in occurred in June 2017 as set out in paragraph 35 of my October Affidavit. My home had two doors containing locks both of which had to be opened to gain access to my living areas. 41 The first door allowed access to my garden between my house and the street. When I woke up at 2:30 in the morning the invaders who were trying to gain entry to my home had already broken through the first door by forcing the lock and were in my garden. They were trying to break through the security screen door in front of my front door with a crow bar which stopped them. 42 What unnerved me was that I was yelling at them for several minutes while they were trying to break-in. Instead of being scared off they asked me to come out to talk to them (without explaining why). It was plainly not an ordinary robbery. I did not know at that stage why they were there. Photos of the damaged door with the police finger print dust visible are Annexure "F". 43 My Affidavit refers to further break-ins on 22 July and 15-17 August 2017 when I was not home. Some of my business records were stolen on those occasions. 44 Even after the August 2017 break-in, I still did not know the reason for the break-ins, but I was becoming increasingly unnerved by my not knowing why I was being targeted. At that stage I was in the dark about why these violent break-ins were happening. For a couple of weeks prior to the first break-in I had been receiving anonymous text and voice messages from various phone numbers with words like "We know where you live. We know where you go." I reported the messages to the police who informed that the messenger was using disposable sim cards with no details. 45 My then 17 year old son and 19 year old daughter lived with me at the time. I was very worried about potential danger to them, and my level of anxiety kept increasing particularly as I did not know the source of the threats, or the identity of the persons who had broken in. 46 To address my fears I installed heavy steel plate over my front door, and even had steel placed along my roof space to stop anyone entering the property. Photos of that work are at Annexure "G".
4. With respect to these matters, I indicated to the parties (Transcript, 31 January 2019, page 15, lines 36 to 47) that I considered it was not necessary to have Mr Nitopi give evidence in more detail than was in his affidavits on this point. I said: HIS HONOUR: Well, let me put this proposition to you both which may truncate matters. It seems to me that there is what I might describe as a forensic criminal thread relating to the activities of others that runs through Mr Nitopi's evidence without necessarily needing to go to precise times and dates when something occurred. It seems to me on my pre-court reading of the material that the issue that arises for these specific proceedings is the reasonableness or otherwise of that thread of conduct by others having an effect on Mr Nitopi not complying with the undertakings that he had given and in particular not simply engaging others to discharge the responsibilities that he had accepted by virtue of those undertakings. Now if that's accepted by both of you it seems to me that a deal of detailed either further evidence in chief or cross-examination might well be avoided.
5. Counsel for the Applicant acknowledged (Transcript, 31 January 2019, page 18, lines 35 to 39) the potential relevance of these criminal matters: BONCARDO: … Your Honour, there is no dispute that a number of unfortunate and no doubt distressing matters, things happened to Mr Nitopi in July and August and December in 2017. …
6. Because of what I have set out above, I am satisfied that the breach of the first undertaking - to remove half the waste by the end of 2017 - is to be viewed in the context of the unresolved criminal activity addressed at Mr Nitopi and his family throughout the period leading up to the date for compliance with the first of the undertakings he had given.
7. It is also to be taken into account for the period post the compliance date for the first undertaking until the date in early February 2018 when the organising perpetrators of the criminal conduct were identified and arrested. For the remainder of the period from that date until 31 March 2018, the first undertaking is to be regarded as remaining on foot. From 31 March 2018, however, I am satisfied that it is appropriate to regard Mr Nitopi's non‑compliance with the first undertaking as being subsumed by his non‑compliance with the second undertaking.
8. Whilst not entirely excusing his inaction to comply with the first undertaking during this period, I am satisfied that these impacts on him warrant a comparatively modest sentence being imposed for this breach.

The period from 31 December 2017 to 2 February 2018

1. After 1 January 2018, Mr Nitopi continued to lack knowledge of who were the primary perpetrators causing the criminal activities directed at him and his children. That lack of knowledge continued until 2 February 2018. However, on 2 February 2018, he was advised by New South Wales Police of the identity of whom were the primary perpetrators of the criminal activities and of their apprehension.
2. I am satisfied that, to the extent this period requires separate consideration in the context of the period from the beginning of 2018 until the entirety of the waste material was removed from the site in mid-November 2018, it can be significantly, but not entirely, disregarded for penalty assessment purposes.
3. I accept that, for the period up to and including 2 February 2018, the position with Mr Nitopi's failure to have all waste removed from the site is to be regarded as an element moderating (but not entirely excusing) inactivity during this limited period.
4. As a consequence, for these sentencing proceedings, I am satisfied that the impacts of the criminal activities directed at Mr Nitopi, and his son and daughter, are a significant mitigating factor with respect to the first contempt he has committed (namely, failing to remove half of the waste by the end of December 2017).
5. To that extent, the punishment to be imposed for the second contempt should reflect that, for approximately the first month of that period, a significant degree of mitigation of penalty should apply for that time period only.

The period from 3 February to the end of March 2018

1. A distinctly different position applies, however, in my assessment, to the period from 3 February 2018 until the end of March 2018.
2. Between 3 February and the end of March 2018, Mr Nitopi remained under the obligation not only to remove the entirety of the waste by that end date but he also remained under the continuing (but breached) obligation to have removed half of the waste.
3. That failure is, until the end of March 2018, a factor arising for my consideration in determining the appropriate penalty to be imposed for the breach of the first of his undertakings to the Court. The reason for this is that, although the second undertaking was on foot, it was the position that its timing for compliance was merely running until the end of March 2018 and there was no crystallised breach of this undertaking until after the expiry of that time period.

The period from the end of March until mid-November 2018

1. From the end of March until mid-November 2018, Mr Nitopi's conduct must be viewed in the context of the removal of the uncertainty of the origins of the criminal conduct directed at him and the fact that he no longer needed to worry that that criminal conduct would be ongoing
2. Because the act of contempt arising from Mr Nitopi's failure to give effect to the second of his undertakings to the Court crystallised after the end of March 2018, it is appropriate to regard this breach as subsuming the breach of his first undertaking. As a consequence, it seems to me that that it would be inappropriate to punish Mr Nitopi for any breach of his first undertaking for the period after time had run out for his compliance with the second of the undertakings given to the Court.
3. It therefore follows that I am satisfied that the assessment of penalty for breach of his first undertaking should be limited to the period between 31 December 2017 and the end of March 2018.
4. His actions (and elements of inaction) during this period of some seven-and-a-half months need, for reasons later explained, to be viewed in an entirely different light. This period can be characterised as one during which Mr Nitopi is, in an entirely conventional fashion, in wilful contempt for the failure to remove the waste from the site.
5. I also accept that a reasonable period, commencing on 3 February 2018, should notionally be allowed, under the circumstance, during which a normal and efficient removal of the waste could have been effected. To the extent to which Mr Nitopi's conduct after 3 February 2018 can be regarded as dilatory, and motivated by his own financial self-interest, these are factors to be taken into account in my sentencing process as later discussed.
6. However, for reasons discussed in the following sections of this decision, the period from 2 February 2018 until removal of the waste from the site was eventually completed in mid-November 2018 lacks any necessity to have regard to the offending conduct against Mr Nitopi and his family as having any significant mitigating effect.
7. Whilst there may have been some minor ongoing impact on Mr Nitopi of those criminal events earlier discussed, I will take that potential ongoing effect as a minor mitigating factor during the period between 3 February 2018 and the eventual removal of the waste from the site some nine-and-a-half months later.

Environmental harm

1. The Applicant accepts that the material remaining on the site for, in effect, the additional period of seven-and-a-half months, between the time of completion of removal set by the second of Mr Nitopi's undertakings and the time of the completion of actual removal in late November 2018, did not cause any environmental harm.
2. The Applicant also accepts the broader proposition that the storage of the material required to be removed on the site has not, in the past, caused any environmental harm.
3. Finally, on this point, the Applicant also accepts that Mr Nitopi's breaches of the undertakings gave rise to no risk or threat of environmental harm.
4. These circumstances comprise a factor to be weighed in Mr Nitopi's favour in my assessment of penalty for each act of contempt.

Introduction

1. The cost of cleaning up and removal of the waste from the site is a matter for consideration in these contempt proceedings. It arises not only in the context of the cost actually incurred but also as to the cost which might have been anticipated to be incurred had the clean-up activities not been delayed until Mr Nitopi was able, in his own assessment, to supervise, personally, the clean-up activities.
2. For the reasons elsewhere explained in this judgment in more detail, both of those factors influence the appropriate penalty to impose on Mr Nitopi for the breach of the second undertaking, particularly.

The division of the disposal process into two phases

1. It was Mr Nitopi's evidence that, for the purposes of disposal, he determined that the material on the site needed to be dealt with in two separate fashions and thus disposed of to two separate destinations. This was because portion of the waste was heavier and was a soil-rich material, whilst the other was lighter. The heavier material was disposed of first and was the material sent to Queensland for use in the mine rehabilitation process. The second portion of the material was lighter and was thus less expensive to dispose of in New South Wales. It was therefore disposed of second and disposed of locally using the services of a local waste disposal company.
2. It emerged from Mr Nitopi's evidence that there were two factors of significance relating to the potential cost of removal and disposal of the waste from the site. These were that Mr Nitopi wished to be present to ensure that the waste was sorted into the two fractions earlier discussed, because, if he was not present, he considered any contractor engaged to organise removal of the waste, would simply dispose of it in a fashion without regard to sorting it into the two fractions and thus in a more expensive fashion.
3. This was of some importance to him, given that it was his evidence in his affidavit of 10 December 2018 that he had expended a considerable amount on the clean-up as it had occurred under his supervision. Although this aspect of his affidavit was subject to cross-examination and subsequent submissions by counsel for the Applicant (to which I will need to return), for the present purposes it is sufficient to note that his affidavit said, at [72]: I have spent around $339,000 complying with the orders, being mostly trucking and loading contractors and tippling (sic) fees.
4. His general position concerning what he regarded as the necessity for his personal supervision to lessen the costs of the clean-up was acknowledged in his oral evidence in the following terms (Transcript, 31 January 2019, page 40, lines 1 to 34): (Applicant) Q. It was open to you wasn't it to telephone a contractor and request them to remove the waste from the site in February 2018 as council suggested to you? A. No, that business is not as easy as you make it sound it to be, I had to be on site because we needed to separate the material, hence why we sent the heavier material to Queensland and then the lighter material ended up in New South Wales. Q. So a particular area of expertise that you have that no-one else does, sir, separating heavier from lighter waste? A. No, the expertise that I have and I was paying them money because a contractor in their interests would've made them as heavy as possible to make more money. Q. Can I ask you this question, is the reason that you didn't pick up the phone and call a contractor in January, February or March 2018 that you were concerned about how much they'd charge you? A. No, I had various contractors go out on site and some of them quoted me some ridiculous amounts of money, 800, 900,000. Q. In January, February or March 2018? A. Yes correct. Q. Where are those quotes? A. It wasn't a quote, they went out and verbally said to me on the phone this is how much it would cost. Q. Where's that in your affidavit sir? A. I can't recall. Q. Is that because it's not there? A. I can't recall. Q. Are you just making it up sir? A. I'm not making it up.
5. The second economic factor that Mr Nitopi took into account when determining the timing of the removal of the waste was the weather. This was because, he testified, if the soil-rich material which was to be transported to Queensland had had recent rain fall upon it, its weight would be increased and thus the cost of its disposal would increase (as the material being disposed of by transport to Queensland was being charged on a weight rather than a volume basis). In this regard, Mr Nitopi's evidence was (Affidavit of 10 December 2018): 48 From my time in the industry, I knew that the cost of waste removal is very different if you can manage the process yourself to regulate the separation of materials because the cost of waste disposal is charged by weight or volume and different facilities accept different types of waste. For example the facility at Bogside Mining (and old shale mining quarry I believe) charges by weight, whereas facilities in Sydney charged by volume. In Bogside the charge for waste disposal is around $78 per metric tonne (plus haulage). In Sydney the charge was $300 per metric tonne, but lighter material could be disposed of at a rate set by volume of around $150 per cubic metre, and that price included haulage. 49 Where material was disposed of by weight it was very important that the material was dry or the cost increased significantly. Material with a high soil content would almost double in weight after rain and would therefore cost double to dispose of. Once a deep pile of soil rich material is wet it takes several weeks to dry particularly in the winter months. The drier the material, the cheaper it is to dispose of both in terms of tipping fees. 50 Allowing for those factors I expected that I could remove half of the material in December and the other half in January, but allowing that more time might be needed if wet weather intruded. It is for that reason that my undertaking to the Court in these proceedings allowed until 31 March 2018 to compete the job. I was very committed to complying with those orders. If I had not been I would have asked for longer. 51 It is to be observed that, in the above passage from this affidavit, no mention whatsoever is made of any concern about the possible depositing of waste material from the site being occasioned on to the local road system by trucks removing the waste from the site.
6. However, in his oral evidence, Mr Nitopi said (Transcript, 31 January 2019, page 45, line 39 to page 47, line 16): (Applicant) Q. One of the reasons that you determined not to engage contractors while you were in Queensland, to start removing the waste was because you wanted to be on site to supervise the removal, is that right? A. I indicated this to you earlier, yes, correct. Q. And the reason you wanted to be on site was because you wanted to engage in a process of divvying up the waste between heavy material or lighter material? A. It's a matter of sorting it with a contractor on site, yes. Q. And the reason that you determined that you had to be on site to do that was because you wanted to save money? A. It wasn't just a matter of saving money, it was also making sure that the material was sent to the appropriate sites. Q. I suggest to you sir the primary reason was because you wanted to get the best deal possible on removal of the waste? A. There was a substantial big difference of cost. Q. The reason that you delayed doing anything until about June was because according to you, you couldn't be on site until then? A. No, I indicated to you that June, the material started leaving the site but there had been preparation prior to June I'd organised the delivery of a large excavator. We'd already started moving bins around to accommodate the B double semitrailers. So material left the site in June but there was a lot of preparation before June that we needed to do. Q. Material left the site it started July didn't it? A. Sometime late middle late June. Q. You also determined sir not to move the waste if the waste was waterlogged? A. Well no, there was two factors, the first factor without a doubt was a weight factor. The next important factor, to me, was I didn't want to in any way give council further reason to prosecute me by leaving mess all the way down the road onto the main roads because if the trucks had been loaded and left the site there'd be a lot of mess on the roads. So that was a very important concern for me as well. Q. That's a concern you haven't set out anywhere in your affidavit? A. You asked me the question why we weren't moving-- Q. Answer the question I'm just asking, that is a concern and you have not articulated anywhere in any of your affidavits? A. I guess so, yes. Q. Is that something you're just making up today sir? A. No, is not making up, I'm not making it up, trucks make a big mess when they're moving rubbish and going onto main roads. Q. So you wanted to be present did you, to make sure that rubbish didn't fall off trucks and if it did it was collected? A. I didn't want any further fines from council for something that I could have you know prevented. Q. Just in relation to the disposal of waste you say in your affidavit paragraphs 48 to 49 on court book 209 that disposing of waste by weight is cheaper than disposing of waste by volume? A. So the weight material which first left the site which was carried by B double semitrailers was charged by weight and that went to Queensland. Then the remaining of the material after it had been sorted which was much much lighter material was cheaper to remain in Sydney and get disposed of as opposed to leaving the State, go to Queensland. Q. As a general proposition removal of waste by volume is more expensive than removed of waste by weight, is that right? A. In Sydney? Q. Yes. A. Yes, yep. Q. So you had to look for someone who was going to move it interstate, is that the position? A. Up until January this year Queensland didn't have a levy that New South Wales has, that makes the material pretty much three times more expensive. Q. So it was cheaper to have the material moved to Queensland? A. Correct, the heavier material.
7. His evidence subsequently continued on this point (Transcript, 31 January 2019, page 47, lines 18 to 28): Q. And even if that was a concern of yours sir to get the best price possible, you said it was a substantial concern, you could have engaged a contractor in January, February or March to transport the waste to Queensland where it would be charged by way of weight? A. No, I indicated to you that during that period of time there was a lot of wet weather. I had instructed that when it was heavy rain that no material would leave the site. One because of the volume but more importantly because of the mess. Now it's my site, it's my responsibility and I wanted to make sure that I would do all the right thing. Contractors don't care, they get into the truck, they load the trucks and off they go. Any material that's left on the roads is then my responsibility.
8. Considering Mr Nitopi's written and oral evidence overall on this point, I am satisfied that his determination that it was essential for him to be able to supervise the removal process, and his effecting that removal process based on questions of whether the weight of the material was increased as a consequence of wet weather, was not motivated by anything other than his regard to his own personal financial interests. There was, effectively, no other basis upon which his conduct is to be considered.
9. For reasons also elsewhere discussed, I am satisfied that his ability to manage his other businesses from Queensland, whilst he had removed himself to that location (not doing so as a consequence of advice from the New South Wales Police, as later discussed), is a further indication that he placed his own commercial interests above the necessity of compliance with the undertakings he had given to the Court.

The removal of the waste

1. Physical removal of material from the site took place, commencing in July 2018, with the material being moved in two tranches (table at page (8) of the Expert Report of Mr Kosciuszko, Mr Nitopi's environmental consultant (Exhibit 2)).
2. In the Mr Nitopi's Affidavit of 9 October 2018, he said: Removal of the waste materials from the Site 47 It was only in June 2018 that my personal circumstances had improved enough to engage a contractor to perform the works on the Site to remove the waste materials. I had to begin the process from scratch as I had lost all of my documentation and quotes in the December 2017. 48 At the beginning of June, I engaged Central Civil Works Pty Limited to remove the waste material from the Site. Attached herewith and marked "Q" is a copy of an e-mail evidencing engagement with Central Civil Works Pty Limited showing that I had contracted them to dispose of the waste. 49 There was poor weather for a number of days in June and July 2018 which further slowed down the disposal of the waste material.

The October 2018 hiatus

1. The schedule of removal activities set out in the Expert Report of Mr Kosciusko disclosed that there was a break of approximately four weeks from late September 2018 until the end of October 2018 when no waste was removed from the site. Counsel for the Applicant cross-examined Mr Nitopi on the reason for this period of inactivity. His oral evidence was in the following terms (Transcript, 31 January 2019, page 57, lines 19 to 40): Q. Mr Nitopi, what I want to suggest to you is that no waste was removed from the site from 26 September 2018 to 31 October 2018? A. About four weeks, possible, yes. Q. And you agree with the proposition? A. I agree. Q. Thank you. You were in Singapore for some of October, weren't you? A. I'd travelled to Hong Kong, correct, and then via Singapore, yes. Q. How long were you in Hong Kong for? A. Four days. Q. And Singapore? A. All up, four days. Q. What were you doing there, sir? A. Business. Q. Instead of devoting your time to removing the waste from site, you took a business trip to Hong Kong and Singapore, is that right? A. It was necessary, I should have done it earlier in the year, but I couldn't.
2. No other explanation was offered, specifically, for this break in the removal process. However, the evidence set out above is a further indicator of the preference which Mr Nitopi gave to his other business interests in preference to compliance with the undertaking given to the Court.

The impact of the New South Wales environmental levy

1. The heavier, soil-rich material (removed during the first stage of the waste removals) was transported to a site in Queensland where it was to be used as part of a mine rehabilitation process. It was Mr Nitopi's evidence that, inclusive of carting costs to transport this material to Queensland, it remained cheaper to dispose of it in this fashion because, at the time of removal, Queensland did not have an environmental levy on waste disposal; whereas such a levy has been imposed by the New South Wales Government for many years.
2. Whilst this is an element explaining part of the cost reasons why Mr Nitopi transported material to Queensland, this is an understandable cost minimisation position taken by him and does not appear to have extended the timing of the removal of this material.

The actual costs incurred

1. In his Affidavit of 21 January 2019, Mr Nitopi asserted, with respect to the actual costs which he had incurred in having the waste removed from the site, the following: 17 Collectively I made payments to Bingo Bins of around $100,000 and to Central Civil (NSW) Pty Ltd of around $200,000 (making a total of around $300,000 for the waste removal).
2. During the course of his cross-examination, Mr Nitopi was questioned closely about the accuracy of this assertion and, particularly, on the question of why there was a discrepancy between the receipts which had been put in evidence about payments made by him for the removal and disposal of the waste and the amounts he had the deposed in the element from his affidavit set out immediately above. The relevant extract from the transcript records this evidence in the following terms (Transcript, 31 January 2019, page 27, line 19 to page 28, line 49): Q. You were served last week or your solicitors were served last week with a notice to produce? A. Yes. Q. And you complied with that today? A. Yes, I was away but I did - I think I satisfied most of it, yes. Q. Paragraph 1 of that notice to produce and I can show you a copy of it if required, but perhaps just take this from me from the bar table, required you to produce bank records and other documents evidencing payment of the sum expended in compliance with the Court orders? A. I have done that, yes. Q. You've done that? A. Yes. Q. And you've produced all documents that you have showing payments made by you in compliance with the Court orders? A. What I've supplied is what I have but I have been away and so the only other documents relate to probably credit card payments that I have to, obviously, get from the bank but given the timing, I didn't have enough time to do so. Q. Have you got access to them on your phone today? A. No, I don't do phone, internet, any of that, yeah I'm old school. Q. Fair enough. Now you haven't paid Bingo waste bins a hundred thousand dollars, have you? A. Not at this stage but it will probably exceed that, yes. Q. Were you gilding the lily a bit, paragraph 17 of your 21 January affidavit when you said, "I have made payments to Bingo Bins of around a hundred thousand dollars"? HIS HONOUR: It doesn't say that. If you're going to put something to him, there's no "have" in that sentence. BONCARDO: I apologise, your Honour. Q. I'll reframe the question, Mr Nitopi. You say, "Collectively I made payments to Bingo bins of around a hundred thousand dollars." A. As I indicated earlier, not just the waste removal but to contractors that were associated or recommended by Bingo, correct. Q. Which contractors? A. Well truck drivers and machine operators. Q. Who? A. AMAC(?) and there was a couple of truck drivers that I paid. Q. We have a receipt from AMAC in exhibit 1. A. One - well you have two receipts Q. Two receipts. A. --but there's about six receipts that I still need to get from them. Q. Where are they? A. Well I haven't requested them from them. Q. You were served with a notice to produce and you haven't requested those documents, is that what A. As I said, I've been away and by the time I received the notice to produce it didn't give me enough time to contact them. Q. When did you make payments to AMAC? A. When? Q. Yes. A. Over a period of time when they started work probably Q. Can you be a little bit more specific? A. The last six months periodically. Q. Is that just something, Sir, that you're saying today? A. Sorry? Q. Is that something that you're saying today after you've been asked to produce documents showing payments of a hundred thousand dollars to Bingo when you haven't been able to do that? A. Mate, I've provided the invoices and the evidence of payments of what I have.
3. In re-examination, Mr Doyle took Mr Nitopi through material relating to the absence of documents relating to payments actually made for removal of the waste (Transcript, 31 January 2019, page 25, line 14 to page 26, line 13): (Mr Doyle) Q. You'll see that that exhibit includes a letter and if you turn to page 2 in that exhibit, there is referred to there, table C, headed, "Invoices issued by Bingo Waste Services", and there is a list of receipts. You'll see that there are amounts stated for those receipts. Now, your Honour, I could go through the actual documents that have been tendered but I'd ask - the addition is that that is the total of the - can I ask you then, Mr Nitopi, that there is a total given on page 4 of that document. It is described as the total of invoices under the heading, "Invoices issued by Bingo Waste Services". You see that? A. Yes. Q. How do you explain the discrepancy between that $52,000 and the $100,000 you estimate in your 29 January affidavit, as being paid to Bingo Bins? A. Yep sure. I asked Bingo to assist me with specialised transport which was paid directly to the contractors that were organised through Bingo, the Bingo drivers, and there were also ongoing invoices that I haven't paid that I haven't yet received for excess weight charges but I don't know what they are yet. Q. Can you explain to the Court how an excess waste charge is - how it functions within the skip bin or waste removal industry? A. They supply you with a various sized bin. In this regard, it's a 17 cubic metre or a 23 cubic metre bin, and they normally advise to fill in up at 8 tonnes or 10 tonnes, and sometimes we go a little bit over because of the material that's going into the bin and then they obviously charge you for the excess over that amount. Q. So if I would take you back to exhibit 1 or the bundle of documents that forms part of exhibit 1 and you turn to folio 9 and compare that with folio 25, and I see that the document at folio 9 says, "17 hook bin", whereas the entry on folio 25 says, "17 hook bin excess weight charge", could you just explain specifically in relation to that invoice, what you would understand those different words to convey? A. So the invoice on page number 9 is the actual invoice for that bin and then the one on 25 would be the excess charge on top of the $1,700 that they would have charged. Q. And I'm correct that they may relate to the same bin? A. Yes. Q. Just different parts of the billing process? A. Excess waste yeah correct. Q. Where you have said in your evidence that you estimate and I should go specifically to what you say. You say, "collectively I made payments to Bingo Bins of around $100,000". Do you need to correct that evidence? A. Well that included the contractors but I think it's ongoing, so it will probably end up a lot more than that by the time it's all paid up. Q. Have you made the payments? A. No not yet, not the additional charges.
4. Whilst I draw no adverse inference from the evidence, which I have set out above, as to the amounts actually paid by Mr Nitopi for the removal of waste from the site, these passages from the transcript (when understood not only in the context of the words recorded but also having regard to Mr Nitopi's demeanour in the witness box when giving it) are reflective of his somewhat cavalier attitude, not only demonstrated by his failure to give effect to the undertakings to the Court but also of his attitude to these contempt proceedings and the evidence he was giving in them.

The amount saved by Mr Nitopi's approach

1. I have elsewhere set out the reasons advanced by Mr Nitopi as to why there was a considerable cost saving to him by delaying the cleaning up of the site until he considered it was appropriate for him to supervise, personally, the removal of the waste material from the site. That personal supervision permitted, on his evidence, proper separation of the waste into its heavy, soil‑rich fraction and its lighter fraction. That separation permitted different geographic bases for disposal of the material, thus saving cost for the reasons explained in his Affidavit of 21 January 2019, at page 2[5], where he deposed: 5 At paragraphs 48 and 49 of my October Affidavit I set out how the waste removal was undertaken under my supervision so as to differentiate generally between the lighter material and the heavier material in order to reduce the cost, and explained how the heavier material was sent to Queensland while the lighter material went to facilities in Sydney.
2. This approach also permitted him to stage, on his evidence, the removal of the material in order to ensure (particularly with respect to the soil-rich, heavier material) that it was not made heavier by having been wetted by rainfall (as this material was to be disposed of by weight rather than by volume). I later, specifically, deal with the question of the rainfall material attached to Mr Nitopi's Affidavit of 21 January 2019.
3. However, it was Mr Nitopi's evidence that the overall cost which he expected would have been incurred, if he had not supervised the clean-up personally but had simply retained a contractor to do so independently of his presence on the site (thus not having regard to the fractional separation of the waste or to potential whether related increases in costs), would have been of the order of $900,000. This figure was given as part of his oral evidence, where he said (Transcript, 31 January 2019, page 40, lines 1 to 25): Q. It was open to you wasn't it to telephone a contractor and request them to remove the waste from the site in February 2018 as council suggested to you? A. No, that business is not as easy as you make it sound it to be, I had to be on site because we needed to separate the material, hence why we sent the heavier material to Queensland and then the lighter material ended up in New South Wales. Q. So a particular area of expertise that you have that no-one else does, sir, separating heavier from lighter waste? A. No, the expertise that I have and I was paying them money because a contractor in their interests would've made them as heavy as possible to make more money. Q. Can I ask you this question, is the reason that you didn't pick up the phone and call a contractor in January, February or March 2018 that you were concerned about how much they'd charge you? A. No, I had various contractors go out on site and some of them quoted me some ridiculous amounts of money, 800, 900,000. Q. In January, February or March 2018? A. Yes correct. Q. Where are those quotes? A. It wasn't a quote, they went out and verbally said to me on the phone this is how much it would cost.
4. For completeness, I note that Mr Nitopi said, in his Affidavit of 10 December 2018: 67 Over the next month [after 20 March 2018] I ran my businesses from Queensland. Again I knew that the work was required under the Court order and Undertaking and understood the seriousness of complying, but I just could not bring myself to focus fully on the issue. I made several phone calls to start arranging the waste removal but with everything going on I just could not focus on the issue. 68 At the same time throughout 2018 I was also spending substantial amounts of time in attending to four separate sets of proceedings running against my mother in the Supreme Court Equity division concerning probate of my father's estate of which my mother had been appointed executor. In short, my mother and my sister were contesting the will of which my two sisters and I are substantial beneficiaries. My mother was the appointed executrix and I have sought and obtained various orders aimed at restraining my mother's dealings with the estate. That litigation has taken up much of my time, and mental capacity. Steps taken to clear the Site from July 2018 69 In that way it was only in June and July 2018 that I found that I could start arrangements to remove the waste from the site. Attached you'll see some photos of the site. In Annexure "L" are photographs which I took on 14 August 2018 showing the contractors I had engaged filling trucks with waste under my direction, and the sort of trucks and equipment I used. The trucks are B Double semi trailers, which carry approximately 100 tonne. I could not get those trucks onto the site until much of the pile of waste had been removed. I do not own that equipment and I had to source trucking contractors to do the work. By the stage when the photos were taken, I estimate 90% of the waste had been removed from the site. 70 I can say from looking at those photographs and my own memory that most of the waste had been removed by that time. There were specific types of waste, particularly steel which remained on site which I wanted to recycle, and waste stored in skip bins. From July right through to October 2018 there were significant periods of rain which held up the removal process for the reasons I have already discussed. 71 I was delayed in completing that work by substantial periods of rain. The rain not only stops work, it also means that the material which has a high soil content had to dry out before it was loaded because the cost of removal otherwise would have increased considerably. 72 I have spent around $339,000 complying with the orders, being mostly trucking and loading contractors and tippling fees.
5. Although I have elsewhere dealt with the delays and their causes, I set out the above extract as it includes (at its highest) the costs' quantum Mr Nitopi considers he has incurred to clean up the site. It is unnecessary to draw a precise conclusion. However, this costs' quantum is to be contrasted with the evidence given by Mr Nitopi as to what he believed was likely to be the cost if he did not supervise, personally, the removal process.
6. I am satisfied that a very significant cost saving (at least hundreds of thousands of dollars - it being neither possible or necessary to be more specific than this) was saved by Mr Nitopi by his insistence on personal supervision of the removal of the waste and his unjustified delay in undertaking any such activity after 3 February 2018.

Conclusion - the contempts were committed for financial gain

1. One of the factors to be taken into account, by analogy with the elements of s 21A(2) of the Sentencing Procedure Act, is whether or not the contempts were committed for financial gain. In this context, although perhaps trite, it is appropriate to observe that financial gain encompasses avoidance of significant financial cost as well as matters such as receipt of cash inducements.
2. Whilst there is no suggestion that the latter type of financial gain is here applicable, there can be no doubt that the former, cost avoidance gain, was a significant motivating factor for Mr Nitopi in his failure to carry out either of the undertakings giving rise to these two charges.
3. I have earlier set out, from Mr Nitopi's own evidence, the two factors concerning potential increased costs of disposal to which he had regard that had the effect of postponing the commencement of the removal process and then its prolongation in order to avoid additional cost which might have arisen due to increased weight of the disposed materials arising as a consequence of rainfall which might have taken place.
4. These matters of avoidance of cost, being founded expressly on Mr Nitopi's own evidence and particularly with respect to his failure to honour the second of his undertakings, are to be regarded as demonstrating, beyond reasonable doubt, that financial gain was a motivating factor in the failure of Mr Nitopi to give effect to at least the second of the undertakings he gave to the Court within the timeframe specified in that undertaking.
5. For the purposes of this sentencing process, this is a factor warranting consideration in determining the appropriate penalty to be imposed on Mr Nitopi for the breach of his second undertaking. I have had regard to this in my consideration of whether or not to accept the exculpatory matters advanced on behalf of Mr Nitopi as being said to moderate any financial penalty and, if so, to what extent.

Overall conclusion on the cost of clean-up

1. Although it would be open to me to conclude, on the basis of Mr Nitopi's responses in cross-examination concerning the actual cost of clean-up, that Mr Nitopi had gilded the lily somewhat as to how much he had actually expended to remove the waste from the site, it is unnecessary for me to draw this inference on this point (although it does arise, for reasons I have separately set out, as to the confidence that I can have as to the more general accuracy of Mr Nitopi's evidence).
2. It is sufficient, in my view, to understand that Mr Nitopi believed that, by delaying the clean-up of the waste in the fashion that he did giving rise to the second of the contempt charges, he would save removal costs of the order of $400,000 or more.
3. In this context, the accuracy of this amount does not require to be established with precision. It is sufficient to know that it was his belief that such a saving could be effected, and that the achievement of a saving of that order was the motive for the delay in cleaning up (at least from 2 February 2018 onwards for reasons separately discussed).
4. Indeed, because these proceedings are not ones which potentially trigger a monetary benefit order (as would potentially be the case if this had been a prosecution under the Protection of the Environment Operations Act 1997 (the POEO Act) as a consequence of the option of such an order arising under s 248 of that Act), it is sufficient that I am satisfied that the breach of the undertakings given by Mr Nitopi, after 2 February 2018, was motivated by seeking to avoid the very considerable additional costs which Mr Nitopi considered he would have incurred had he merely engaged a contractor to undertake the clean-up of the site without his involvement.
5. In addition, for the reasons elsewhere explained, I am satisfied that, in addition to seeking to avoid what he regarded as the inevitable additional costs that would be involved had he engaged a contractor to undertake the removal, Mr Nitopi also preferred his own business interests over compliance with the undertakings he had given to the Court as the reason for the delay in commencing the clean-up activities. No satisfactory explanation is advanced as to why, after 3 February 2018, he could not have devoted his attention to carrying out the undertakings that he had given to the Court in lieu of preferring his own business interests over such compliance.

Intrafamilial civil litigation

1. Mr Nitopi has also been involved in Supreme Court civil litigation in the Equity Division concerning his late father's estate and in the Common Law Division in an intrafamilial commercial dispute.
2. In his affidavits, Mr Nitopi gave evidence of what he said was the distracting impact of this litigation on him. His evidence on this point has been earlier set out at [42]-[43] when dealing with the question of his commencement of the necessary clean-up activities.
3. He was also cross-examined on this. His evidence was in the following terms (Transcript, 31 January 2019, page 61, lines 13 to 34): Q. You're not seriously suggesting though the fact that you're engaged in litigation in the Supreme Court is a reason for you not to have complied with your obligations under the undertaking? A. I think that's a very, very important reason, yes. Q. So you are content to prioritise, are you, your conduct of litigation in another court over your obligations to this Court in accordance with the undertakings? A. No, the matters of that - the details and those matters are not in any reason why this has been delayed, it's purely and simply because of my absence from Sydney, as simple as that. Q. I see and just to clarify something we're clear on this point, you're not suggesting that the fact you have those other proceedings on foot prevented you from picking up the phone while you were in Queensland and contacting a contractor to arrange for them to remove the waste? A. I was in contact with contractors but physically we didn't start up until June and July to removing the material but I'd been preparing previous to that. Q. Even though you'd been coming to Sydney from early on in the year? A. For short trips, one day, sometimes half a day, it wasn't long enough, and those reasons were to, you know, for signing affidavits or attending to court.

The impact on Mr Nitopi of these criminal acts - introduction

1. In his affidavits, Mr Nitopi also gave evidence of what he said was advice from investigating detectives from New South Wales Police that he should leave the State and that he should not return until he was given "clearance" by the police that it was safe for him to do so. As a consequence, Mr Nitopi relocated to Queensland, where he presently resides.

Mr Nitopi's relocation to Queensland

1. Mr Nitopi was cross-examined by counsel for the Applicant concerning the position which he had advanced as being held by the New South Wales Police as to his presence in New South Wales. This cross‑examination occurred in the context of a letter from Mr Nitopi's solicitors to the Applicant's solicitors, dated 10 April 2018, nominating a particular detective senior constable as the person to contact in this regard. His solicitors advised the Applicant's solicitors, by letter dated 10 April 2018, that Detective Senior Constable Angela Vergopoulos was the appropriate person for the Applicant's solicitors to contact for information concerning the criminal investigation matters (Evidence Book, folio 55).
2. The Applicant's solicitors subsequently sought information from the Detective Senior Constable concerning the assertion that Mr Nitopi had been advised to remove himself from the jurisdiction. Detective Senior Constable Vergopoulos communicated with the Applicant's solicitors on 16 May 2018. In her e-mail she denied that such advice had been given. Relevantly, she wrote (Evidence Book, folio 90): In February 2018 (names omitted) were arrested and charged with being accessories before the fact for their involvement in planning and financing these offences. There were numerous victims of these offences (Mr Nitopi and residents in Scott St). Police did not advise any victim to leave their premises during Police investigations. From my understanding, Mr Nitopi left his premises around July/August 2017. Police had not identified any suspects at that stage for the reported incidents.
3. It is sufficient to note that the communication from the officer did not support the terms of the assertion made by Mr Nitopi as to the necessity for him to leave New South Wales and for him to obtain the "clearance" of New South Wales Police before returning.
4. Mr Nitopi's solicitors, on Mr Nitopi's behalf, asserted that he required to be given clearance by the police before he could return to New South Wales. That assertion was made in a letter dated 21 February 2018 (Evidence Book, folio 49) in the following terms: As stated in our letter to you dated 21 February 2018, our client is currently the victim of serious criminal offences which have resulted in him leaving New South Wales on the advice of the NSW Police Task Force. … … … We are instructed that our client is committed to the clearing of the site as soon as he has the clearance of the NSW Police Force to return to Sydney. In light of this, we respectfully ask that your client please refrain from starting any contempt proceedings.
5. Counsel for the Applicant cross-examined Mr Nitopi concerning the assertion made by his solicitors in the letter of 21 February 2018 from which the above extract has been taken (Transcript, 31 January 2019, page 35, line 41 to page 36, line 48): Q. Do you accept that in the second paragraph a representation that the New South Wales Police Force advised you to leave New South Wales was made again? A. Yes. Q. And in the last paragraph of that page the representation, "We are instructed that our client is committed to clearing of the site as soon as he has the clearance of the New South Wales Police Force to return to Sydney"? A. Yes. Q. So you'd agree with me that what your lawyers are saying on your instructions is that the New South Wales Police Force have not only advised you to leave New South Wales, they had also determined that you weren't to come back without their clearance? A. So what was happening I was talking with a number of senior detectives, not just the one, and in their advice they had arrested and charged my uncle and my mother but the actual people that were commissioned and paid to do the work hadn't been caught yet so various different senior detectives had suggested to me that whilst those people were out and about that I should not return back to Sydney. Q. I see? A. They're now all been caught by the way. Q. So, you needed to seek their clearance, did you? A. Well, they thought it was very concerning that these gentlemen were still out and about. Q. Can you answer my question, did you need to seek their clearance to return to New South Wales? A. I thought it was important. I think that, you know, that they had told me certain things that these guys had - that they'd intercepted telephone calls and they thought it was important that I shouldn't return to Sydney whilst they-- Q. Were you trying to give the impression in this letter to Blacktown City Council that you weren't allowed back in New South Wales unless you got the clearance of the New South Wales Police? Q. Not that I wasn't allowed DOYLE: I object, the letter doesn't say that. BONCARDO: I'm asking about the impression he was intending to give. HIS HONOUR: The letter says what the letter says. The question then arises not as to what the letter says but as to whether he instructed that the letter was to say that you would readily appreciate that words written by lawyers should only be written on proper instructions and if they're written without proper instructions then that is not a matter that will necessarily or indeed usually prejudice the client. DOYLE: I just object that BONCARDO: I'll withdraw the question and ask another one. Q. You instructed your solicitors, did you not, to write that they were instructed that you were committed to clearing the site as soon as you had the clearance of the New South Wales Police to return to Sydney? A. What I suggested by the clearance of the New South Wales Police Force was that those actual gentlemen that committed the crimes hadn't been arrested, so they suggested that whilst they were out and about that I should keep my distance from Sydney, they didn't suggest I wasn't allowed to return to Sydney, so I took it on their advice that while those gentlemen were still out and about not to return. Q. You know Detective Senior Constable Angela Rigopolous(?), don't you? A. I know - I deal with about half a dozen of them. Q. She's someone that your solicitor suggested that Blacktown City Council should get in touch with about your circumstances? A. Well they've had changes of senior detectives along the way so Senior Detective Angela Rigopolous is not currently the only detective that's in charge. Q. Would you accept from me sir that your solicitors, and perhaps I'll show you document, this might be easier, if you can turn sir to court book 55 again I apologise, do you see the third paragraph down, your solicitors invited the solicitors for the council to contact Detective Rigopolous about your situation? A. Yes. Q. You understand don't you, having read council's evidence, that Senior Constable Rigopolous replied about your situation? A. Again Senior Detective Angela wasn't the only detective in charge at the time. Q. Can you turn to court book 90 for me and this is a document which your lawyers haven't objected to? A. 94? Q. 90. I just want to ask you sir, once you've read it, about the third last paragraph? A. Yes. Q. Do you accept that the senior constable says that police did not advise any victim to leave their premises during police investigations? A. I don't think - that's not correct. Q. You haven't said anywhere in your affidavits that you disagree with what the senior constable has set out there? A. I know the many times I attended my premises after the break-ins and my children were present with me very, very obviously very emotional that certain detectives had suggested for us to vacate the premises. So what one senior detective suggests doesn't in any way state what other detectives have said at the time. Q. No, this is the detective that your lawyers told Blacktown City Council to contact about your situation? A. I understand and I appreciate that but there were a lot of detectives handling the matter that's still ongoing.
6. Nowhere in his evidence, written or oral (supplementary-in-chief or in cross‑examination), did Mr Nitopi assert that any police officer had given him the required clearance his solicitors had asserted was necessary for his return to New South Wales.
7. However, it was Mr Nitopi's oral evidence (Transcript, 31 January 2019, page 52, lines 24 to 30) that he had been returning to New South Wales since about early March 2018. This time period is consistent with the advice given to Mr Nitopi by New South Wales Police on 2 February 2018 that the primary perpetrators of the criminal conduct had been identified and arrested.
8. It is also to be noted that, during the course of his cross-examination extracted above, Mr Nitopi gave evidence that the nominated detective was not the only detective involved in the investigation of the offences against him. He was, however, unable to explain why the particular officer nominated by his solicitors as the point of contact for verification of the position he asserted applied did not support that assertion and nor was he able to be any more specific than indicating that there were other officers (unidentified) who may have given the instruction to him to leave the State and not return until he had a "clearance" from New South Wales Police to do so.
9. Although, in his Affidavit of 10 December 2018, at [58], Mr Nitopi nominated two other police officers as having given him this advice, that assertion is unsupported by any other evidence and is directly contrary to the only direct evidence from the Detective Senior Constable, as set out above.
10. Although it is unnecessary to draw a formal Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) inference concerning the failure of Mr Nitopi to call any New South Wales police officer on this topic, I have concluded that it is appropriate to prefer the evidence in Detective Senior Constable Vergopoulos's communication over that of Mr Nitopi on this point.
11. The inference to be drawn, necessarily and beyond reasonable doubt, I am satisfied, is that not only no clearance was required from New South Wales Police but also that the arrest of the primary perpetrators on 2 February 2018 provided Mr Nitopi with the basis upon which he independently concluded that he might return to New South Wales whenever he considered it appropriate or desirable to do so.
12. In this regard, two further matters are to be noted. First, although one of the primary perpetrators had sought to have their bail conditions altered so as to permit visiting to the Gold Coast (the general locality to which Mr Nitopi has relocated in Queensland), that request was denied.
13. This is to be seen in the context, however, of the granting of an interim apprehended violence order against this primary perpetrator in terms protective of Mr Nitopi, and the recent extension of that interim order (noting that the application for the extension of the order was made by Detective Senior Constable Vergopoulos in circumstances where this primary perpetrator has been convicted on relevant charges and stood to be sentenced in March of this year).
14. The granting of conditional bail to this individual clearly reflects a conclusion by the judicial officer who determined that bail was appropriate that that perpetrator was not an unacceptable risk to Mr Nitopi and others toward whom the criminal conduct had been directed.
15. Second, it was Mr Nitopi's evidence that, although his daughter continued to be enrolled at university in Sydney, his son had now enrolled in a university on the Gold Coast (Affidavit of 10 December 2018, at [64]).
16. The inference to be drawn from this, in my view, is that, even if appropriate (rather than mandated by New South Wales Police) for Mr Nitopi to choose to relocate to Queensland, the identification and arrest of the primary perpetrators of the criminal activities, on 2 February 2018, together with the limited further protective measures considered appropriate when coupled with his son's enrolment at a university on the Gold Coast, means that it is appropriate to conclude that Mr Nitopi's continuing relocation after 2 February 2018 arises as a result of a choice made by him rather than any matter of necessity.

Mr Nitopi's business interests

1. I have already noted that Mr Nitopi had conducted his waste or resource management facility business from the site for a lengthy period of time and that he owned another property across the road from the site. During the course of his cross-examination by counsel for the Applicant, Mr Nitopi was asked about the nature of his overall business interests. In this regard, his evidence was (Transcript, 31 January 2019, page 39, lines 26 to 40): Q. What were the businesses you were running in February 2018? A. A cruising business, I have a substantial amount of rental properties that I rent out to tenants. Q. You said businesses, is that it? A. Financial businesses, yeah. Q. I see, what are they? A. Lending money, things like that. Q. Anything else? A. Anything else. Q. Yeah? A. No.
2. It was also his evidence that he was able to manage his business interests, using modern communications technology, from his present location in Queensland. In this regard, he also said (Transcript, 31 January 2019, page 39, lines 41 to 50): Q. So you've got the cruise business, the rental business and the finance business, you're running them all from Queensland are you? A. Yes. Q. Are you using your mobile phone? A. Yes. Q. Using the internet? A. Yes.

The real question(s)

1. During the course of his submissions, Mr Doyle said that: The real question is why it didn't get done.

Introduction

1. I accept that as a summary of what I am required to determine as the appropriate starting point for assessing what penalty is appropriate to be imposed on Mr Nitopi. In this context, it is to be observed that there are two charges of contempt that have been brought, one with respect to the breach of each of the undertakings given to the Court on 3 November 2017.
2. It does not automatically follow that the same answer is to be given to Mr Doyle's question with respect to each of these charges. Indeed, for the reasons that I set out in this judgment, the answer to that question with respect to the charge relating to the period up until the end of 2017 (the removal of half of the waste material) is comparatively easy to set out and the process for determining the appropriate penalty with respect to that breach is also comparatively uncomplicated.
3. However, with respect to the second of the charges, a much more complex position emerges from the evidence. In that regard, it has been necessary to set out, earlier, at some length a range of matters arising from the evidence and the conclusions that are to be drawn from them prior to proceeding to the sentencing synthesis necessary for the breach of the second undertaking given in November 2017, namely, that the entirety of the waste on the site would be removed by the end of March 2018.
4. I am satisfied that the pattern of Mr Nitopi's activities, both as to the management of his businesses and as to his travel, until the commencement of the actual clean-up activities in July 2018, was the result of his giving preference to those business activities over his obligations to effect the clean‑up of the waste from the site. The delay is further explained by his desire to be present in order to ameliorate the otherwise significant cost that would be, in his view, occasioned by having the clean-up undertaken by a contractor without Mr Nitopi supervising the activities. However, even if this cost-saving measure was appropriate (which I do not accept that it was for the purposes of complying with the undertakings he had given), this does not in any way explain the delay in commencing the clean-up activities. For reasons later explained, I am satisfied that the commencement of these contempt proceedings was, in fact, the sole reason why Mr Nitopi actually commenced the clean-up activities when he did.

The trigger for commencement of the actual clean-up

1. It is also necessary to consider what conclusion is to be drawn as to why Mr Nitopi commenced the clean-up activities when he did.
2. By letter dated 20 February 2018, the Applicant's legal representatives wrote to Mr Nitopi's solicitors (Evidence Book, folio 68) in the following terms: 1 We refer to our letters dated 16 January 2018 and 25 January 2018, to which we have not received a reply. 2 The Council still has not received any evidence that your client is complying with the undertakings he gave the court to lawfully dispose of half the waste materials by 31 December 2017. 3 The Council, again, encourages your client to comply with the undertakings he gave to the court as soon as possible. 4 The Council considers your client's breach of his undertaking to be very serious. The Council is determined to ensure that your client satisfies the undertakings he gave to the court. If your client continues to breach is undertakings then the Council may commence proceedings for contempt.
3. On 21 February 2018, Mr Nitopi's solicitors wrote to the Applicant's solicitors saying, inter alia (Evidence Book, folio 49): Unfortunately, we are instructed that our client is currently the victim of serious criminal offences, which have resulted in him leaving New South Wales on the advice of the NSW Police Task Force. We are also informed that the criminal offences aimed against him have prejudiced his ability to comply with the undertakings that he provided to the Court. As a result, Mr Nitopi has instructed us to seek an extension of the undertakings through the Land and Environment Court, although he has advised that his intentions are still to lawfully dispose of as much of the waste materials as he can by 31 March 2018.
4. Mr Nitopi was cross-examined on this point (Transcript, 31 January, page 34, line 18 to page 35, line 13): Q. 49, it's a letter to Sparke Helmore Lawyers from Vincent Parisi of Hunter Lawyers dated 21 February 2018? A. Yes. Q. May I ask you about the last paragraph , do you agree that it says that you instructed, or you had instructed I should say, Hunter Lawyers to seek and extension of the undertakings through the Land and Environment Court? A. Yes. Q. You'd instructed your solicitors to approach the Court and seek an extension of the undertakings, had you? A. Yes. Q. Did you instruct them not to proceed with that? A. I can't recollect but all I can say is that at all times I was aware of the seriousness of that undertaking and that was an option that I considered because I didn't want to, you know, be deemed as someone that wasn't doing what the undertaking was. Q. See, what I'm putting to you, sir, is that your lawyers have told the lawyers for Blacktown City Council that they had been instructed by you to seek and extension of the undertakings through this Court? A. I can't recollect, that was a year ago. Q. You'd accept that your solicitors would no doubt have been acting on your instructions in writing this letter? A. I can see that but I can't recollect. Q. So you accept from me that you must have instructed them to approach the Court to seek a variation of the undertakings? A. I can't exactly remember. Q. Do you accept that that is a possibility? A. I accept that's a possibility, yes. Q. That didn't happen, did it? A. I don't know why but again I was aware of the seriousness of the undertaking to the Court and then I may have suggested to extend the undertaking deadline because I wanted to commit myself to cleaning at the site. Q. It was always open to you to instruct your solicitors to proceed with the extension set out in that letter, wasn't it? A. With due respect again, sir, around that time is when I learnt the perpetrators, the identity of the perpetrators, and I had a lot of other things on my mind, particularly concerning my two children.
5. Despite the assertion in Mr Nitopi's solicitors' letter of 21 February 2018 that they had been instructed to seek an extension of time within which Mr Nitopi could discharge his obligations to remove the waste from the site, no such application was made.
6. It is to be observed, in this respect, any such extension could only have been with respect to the second of the undertakings, as the deadline for removal of half of the waste, being the subject of the first of the undertakings, had already expired with Mr Nitopi having taken no steps on the site to effect the removal of any of the material, let alone the 1,600-or-so cubic metres of material that would have been necessary to have been removed to satisfy that first undertaking.
7. It next becomes necessary to consider what inference, if any, is to be drawn concerning the reason for, and timing of, commencement of clean-up activities on Mr Nitopi's part. In this regard, the position advanced by the Applicant was that it took the commencement of these contempt proceedings to stimulate Mr Nitopi to actually commence doing anything about cleaning up the site.
8. In this regard, the Applicant relies (for this inference) on the sequence of the closely following dates set out below:

• 22 May 2018, contempt proceedings commenced;
• 24 May 2018, the Applicant's solicitors write to Mr Nitopi's solicitors to advise that the contempt proceedings have now, in fact, been commenced (rather than merely being threatened as had been the position in earlier correspondence); and
• 30 May 2018, on this date Mr Nitopi made contact, it is to be inferred for the first time, with a representative of Central Civil (NSW) Pty Ltd (Central Civil) arranging for that contractor to undertake the removal works. In this regard, an e-mail from Mr Sarkis Elias, a principal of Central Civil was in evidence as an attachment to Mr Nitopi's Affidavit of 9 October 2018 at folio195 of the Evidence Book, an e-mail in the following terms: Hi Pepe as per phone conversation toady thank you for offering the work, Central Civil NSW is happy to be onsite by Thursday next week.

1. It was Mr Nitopi's evidence that this sequence of dates was merely coincidental and that the commencement of proceedings had had no bearing on triggering the initiation of clean-up activities for the site. He said, in response to questions from counsel for the Applicant (Transcript, 31 January 2019, page 53, lines 25 to 36): Q. Would you accept the proposition that as at 24 May you would have been aware that the council would commence contempt proceedings against you? A. I guess so, yes. Q. It's the case, isn't it, that you only commenced interacting with Mr Sarkis Elias from Central Civil after 24 May, is that a fair comment? A. I guess so, yes. Q. The reason that you commenced engaging with him after 24 May is because council commenced contempt proceedings against you and you knew then that you had to get the waste off site? A. I disagree.
2. Delay, in this regard, is a matter, if established, that weighs as a factor of aggravation of the contempt (if established beyond reasonable doubt).
3. I am satisfied beyond reasonable doubt, and despite the denial by Mr Nitopi that the inference to be drawn that commencement of clean-up only arises as a consequence of the commencement of these contempt proceedings is compelling to be drawn as established beyond reasonable doubt. This is a factor of significance in my sentencing consideration.

Introduction

1. One of the reasons advanced by Mr Nitopi as to why there were gaps in the removal of material from the site concerned the potential weight increase impact if the material (particularly the soil-rich material) was made heavier as a consequence of rainfall. In support of this, Mr Nitopi annexed to his Affidavit of 21 December 2018 rainfall statistics for North Parramatta. These statistics had been obtained for him as a consequence of research undertaken by his adult daughter. The relevant rainfall statistics were set out in Annexure E to his affidavit at folios 355 to 359 of the Evidence Book. The statistics covered the months of July to November 2018.
2. Before turning to consider what this material discloses, two matters are to be observed.
3. First, although the arrangements with Central Civil to act as the operational contractor for the removal of the waste had commenced with the engagement of that contractor to be on site from early June 2018, waste removal did not actually commence until early July 2018 (table in Exhibit 2 at page 8). Mr Nitopi's evidence, in this regard, was that there was a necessity for bringing equipment to the site and the rearrangement of non-waste material and waste bins on the site in a fashion that would permit the removal of the material mandated to be taken from the site. It was his evidence that this took up the month of June 2018. Nothing in his affidavit evidence, or arising out of his oral evidence, causes me to question this explanation.

Timing of the waste removal activities

1. Second, the table in Exhibit 2 discloses the following with respect to material removed from the site:

• on 3 July 2018, a single load was removed from the site to go to the mine rehabilitation project in Queensland;
• on 6 July 2018, three loads were removed from the site to go to Queensland;
• on 23 July 2018, three loads were removed from the site to go to Queensland;
• on 25 July 2018, three loads were removed from the site to go to Queensland;
• on 30 July 2018, three loads were removed from the site to go to Queensland; and
• on 26 September 2018, two loads were removed from the site to go to Queensland.

1. The material removed to Queensland for the mine rehabilitation process was the soil-rich material about which Mr Nitopi expressed particular concern as to the impact on its removal weight as a consequence of rainfall occurring in the relevant periods.
2. With respect to the waste which was removed for local disposal by Bingo Waste, the table on page 8 of Exhibit 2 discloses that:

• on 31 October 2018, four loads were removed;
• on 1 November 2018, four loads were removed;
• on 2 November 2018, one load was removed;
• on 7 November 2018, two loads were removed;
• on 8 November 2018, two loads were removed;
• on 10 November 2018, two loads were removed; and
• on 12 November 2018, one load was removed.

1. With respect to the material removed by Bingo Waste, Mr Kosciuszko stated (also on page 8 of Exhibit 2): Based on my experience in transferring compacted waste of the type present on site, the bulk density of waste of this type is approximately 0.2 to 0.25 tonnes per cubic metre.

The rainfall statistics

1. As earlier noted, the rainfall statistics that were appended to Mr Nitopi's Affidavit of 21 December 2018 were in the Evidence Book at folios 355 to 360. These pages set out the daily rainfall statistics for Parramatta North for each day of each month. In the Evidence Book, they were reproduced in reverse calendar order - commencing with the November 2018 rainfall reports at folio 355 and concluding with the June 2018 rainfall reports at folio 360.
2. It is unnecessary to repeat the entirety of the detailed information contained in them. It is appropriate, however, to make the following observations concerning the various months and what was disclosed by the rainfall reports.
3. In setting out this material, I am prepared to assume, in Mr Nitopi's favour, that the rainfall at North Parramatta was sufficiently representative of the rainfall at Riverstone to warrant consideration (despite the fact that there is no evidence in these proceedings that that is the actual position). The information revealed is: 1. For June 2018, following Mr Nitopi's commencement of organising Central Civil in mid-June, rainfall was recorded on only four days during the remainder of June, with only rain of any potentially relevant significance falling on 20 June (19.4 millimetres) and 29 June (nine millimetres); 2. In July 2018, rain fell on only three days and none of those days involved rainfall of any relevant significance; 3. In August 2018, rain fell on only eight days and none of those days involved rainfall of any relevant significance; 4. In September 2018, during the period until the last load of the heavier, soil-rich material left for Queensland, no rain of any significance was recorded. In addition, no further rain of any significance was recorded for the remainder of that month; 5. In October 2018, heavy rain fell on Friday 5 October; Saturday 6 October, Thursday 11 October, Sunday 14 October and Thursday 18 October. Moderate rain also fell on Friday 19 October. Negligible rain fell on any other of the days that month. It is to be remembered that Mr Nitopi effected no removal of any waste material from the site between 26 September and 31 October. Such waste as remained on the site for removal was not the heavier, soil-rich material potentially significantly subject to weight increase occasioned by water absorption from rainfall but was the lighter fraction of the waste to be disposed of in New South Wales; and 6. For the first half of November, there was negligible rainfall apart from Thursday 8 November when there was moderate rain (14 millimetres) recorded at North Parramatta.
4. As can be seen from the above extracted rainfall information, there is nothing that would cause me to conclude that there was any significant validity in the suggestion put by Mr Nitopi that rainfall was a valid reason for the period of time between mid-July and mid-November 2018 that it took to remove waste from the site.
5. Specifically, there is no rainfall-based explanation for the gap between 30 July 2018 and 26 September 2018 when there was a cessation of removal of material from the site to go to Queensland.
6. I have earlier dealt with the lacuna in removal which occurred between late September 2018 and the end of October 2018. For reasons I have earlier discussed, no specific and coherent explanation was proffered for this delay, delay that coincided with a period including Mr Nitopi's overseas travel to Asia in pursuit of his own business interests.
7. The gaps in the removal timetable are, with respect to the first gaps, entirely without explanation and, with respect to the September/October 2018 gap, no explanation was offered, but the evidence concerning Mr Nitopi's pursuit of his own business interests leads to the reasonable inference that this occasioned the September-October 2018 break.

Dropping waste from departing trucks

1. One aspect pressed by Mr Nitopi was that his personal supervision was necessary in order to ensure that vehicles laden with waste that departed from the site would not drop waste on streets in the vicinity of the site. Mr Nitopi's evidence on this point was in the following terms (Transcript, 31 January 2019, page 46, lines 19 to 37) and see also earlier at [76]: Q. You also determined sir not to move the waste if the waste was waterlogged? A. Well no, there was two factors, the first factor without a doubt was a weight factor. The next important factor, to me, was I didn't want to in any way give council further reason to prosecute me by leaving mess all the way down the road onto the main roads because if the trucks had been loaded and left the site there'd be a lot of mess on the roads. So that was a very important concern for me as well. Q. That's a concern you haven't set out anywhere in your affidavit? A. You asked me the question why we weren't moving-- Q. Answer the question I'm just asking, that is a concern and you have not articulated anywhere in any of your affidavits? A. I guess so, yes. Q. Is that something you're just making up today sir? A. No, is not making up, I'm not making it up, trucks make a big mess when they're moving rubbish and going onto main roads.
2. It is unnecessary to explore this assertion at length. I am satisfied that it does not provide any proper excuse for the delay in commencement of the clean-up activities nor any proper foundation for Mr Nitopi's assertion that his personal supervision was required of the clean-up activities on the site. I reject the assertion for two reasons.
3. First, there is absolutely no evidence from Mr Nitopi as to the nature of the supervision that he undertook of the activities for removing the waste from the site, let alone any detailed material that could support a conclusion that he had, somehow, ensured that there would be no depositing of material on surrounding streets.
4. Second, there is no basis to conclude that a properly instructed contractor would, to the extent that such preventative activity might have been necessary, not have carried out such activities.
5. In the absence of any appropriate material concerning these matters, I pay no heed to this bald assertion made by Mr Nitopi.

Introduction

1. Consistent by analogy with the Sentencing Procedure Act, as I have earlier discussed, it is now appropriate for me to turn to consider the subjective factors personal to Mr Nitopi to which I should have regard in my assessment of what might be the appropriate penalties to be imposed on him.

The civil litigation

1. The relevant factors here applicable are discussed below.

Mr Nitopi's record

1. Mr Nitopi has no prior convictions and this is a factor to be taken into account in his favour.

The contempts have been purged

1. Although Mr Nitopi's breaches of the undertakings meant that the material was not completely removed from the site until some seven-and-a-half months after completion was scheduled to have occurred by virtue of the second of the undertakings breached, nonetheless, all of the material has now been removed. Therefore, there is no continuing contempt and the contempts committed by breaching the undertakings have now been purged.
2. The evidence of Mr Nitopi's environmental consultant, Mr Kosciuszko (Exhibits 2 and 3) make it clear that, by 13 November 2018, all of the material required to be removed from the site had been so removed. The effect of this is that, although occurring some seven months after Mr Nitopi had undertaken to the Court that this result would be achieved, nonetheless, there is no ongoing contempt by Mr Nitopi.
3. This is a factor to be taken into account in my sentencing consideration.

Mr Nitopi's character

1. Whilst I have already recorded that Mr Nitopi has no prior convictions and that this stands in his favour, it is also to be observed that I have no positive evidence advanced on his behalf concerning community activities or the like with which Mr Nitopi may be engaged. The absence of such evidence (it being for Mr Nitopi to put such material before me if it is to be taken into account) does not permit me to conclude that there is any additional positive factor in Mr Nitopi's favour to which regard is to be had.
2. I expressly note, in this context, that the absence of such material cannot weigh to Mr Nitopi's disadvantage and I have not taken this absence into account. The old adage, "absence of evidence is not evidence of absence", is entirely apposite in this regard.

Contrition and remorse

1. A factor to be taken into account in sentencing is the extent to which Mr Nitopi has expressed contrition and remorse for his acts of contempt in failing to give effect to the two undertakings he made to the Court in November 2017.
2. First, it is to be observed that Mr Nitopi deposed four affidavits in these proceedings (see [31] for their dates). In the first two of those affidavits, nothing was included that could be said to evince any contrition and remorse for the contempts that bring Mr Nitopi before the Court. However, in his Affidavit of 21 December 2018 (affidavit at [8] to [15]), he said: 8 For the reasons set out in my earlier Affidavit I had always intended to comply with the consent orders made for the removal of waste from the site in the time allowed. 9 Indeed, as there set out I spent a significant amount of time making inquiries to different waste and recycling companies to price the removal. 10 The reason why I did not comply with the timetable anticipated in the orders is the extraordinary events which affected me and my family from June 2017, but which spiralled dramatically with the revelations to me in December 2017 as set out in my earlier Affidavits. 11 I keep in touch with the surrounding owners and tenants and I have never received any complaints from them about the Riverstone Site. 12 However, I do understand that Court orders are important and I regret deeply that my family troubles lead me to be unable to comply with the time specified by the Court. 13 I did intend throughout 2018 to remove the waste from the site as soon as circumstances allowed. I repeatedly instructed my solicitors to inform the Council that the waste would soon be removed. 14 However, as I was living in a different state, keeping my location a secret, looking after my children at a time of great family turmoil, and responding to my lawyer's constant demands in relation to a variety of Court actions in the Supreme Court and Court of Appeal I simply found myself unable to keep to my predictions. 15 I really never meant to breach the orders, and am very sorry that occurred.
3. Mr Nitopi was cross-examined by counsel for the Applicant on this point. The transcript records this in the following terms (Transcript, 31 January 2019, page 59, line 28 to page 60, line 3): (Applicant) Q. You don't make any apology in your 9 October 2018 affidavit and your 10 December 2018 affidavit for breaching the undertaking? A. No. Q. It was open to you to apologise and to express remorse in both those affidavits, wasn't it? A. I've always been apologetic and, you know, and, you know, apologetic in the sense that it took so long to remove the material. Q. It was open to you to apologise and express remorse in your 9 October 2018 and 10 December 2018 affidavits, wasn't it? A. I guess so. Q. And you decided to not avail yourself of that opportunity? A. No, I didn't not decide, just didn't happen, I guess. Q. Can I ask you this, is that because you weren't contrite at that time? A. Sorry, what was? Q. You weren't contrite at the time you made those affidavits? A. What do you mean? Q. You weren't sorry for breaching the undertaking as at the time you made those affidavits? A. No, I said I was always sorry and apologetic and attempted to remove the material as quick as I could.
4. In his closing submissions, counsel for the Applicant drew attention to the lateness of Mr Nitopi's apology, saying (Transcript, 6 February 2019, page 14, lines 40 to 42): Your Honour will also recall that whilst there has been an apology and an expression of contrition, that came somewhat late in the day. There was no reference to contrition or remorse in Mr Nitopi's 9 October and 10 December affidavits.
5. On behalf of Mr Nitopi, Mr Doyle, in his closing submissions, addressed the question of the lateness of Mr Nitopi's apology. Mr Doyle submitted (Transcript, 6 February 2019, page 34, lines 23 to 38): The solicitors, of course, can't go out there and remove the waste for him, and what seems to have happened is he said to his solicitors, "Tell the council that" he does say, "I intend", he didn't make a process. "I intend at the moment to get it all off by 31 March", but his affidavits produced several months later say, "Look, that was my intention then, but because of the ongoing circumstances, I just didn't do it". I mean, you can almost hear it, your Honour. I didn't do it. I understand the seriousness. He said that ten times. He's apologetic, and I think all of his letters the suggestion is that his apology came late, but every single one of his letters the emails sent on his behalf, none of them are saying to the council, "Stop being unreasonable. Stop complaining. I'll get around to it when I'm ready" or anything like that. It's all apologetic. It's a consistent approach to the council saying, "I know I'm in breach. I'll get it done as soon as I can", but then he goes back home and he just doesn't do it for mental problems, for mental stressors, to practical disorganisation in his life that meant that ultimately he let everybody down in a sense and didn't keep to his promises.
6. I have had careful regard not only to the above material but also the context of Mr Nitopi's demeanour in giving that element of his evidence in cross‑examination. As I have earlier indicated, I did not find Mr Nitopi to be an impressive witness. The above set out passage of his oral evidence, paying particular regard to his demeanour as I noted it as he gave it, was that he was "winging it" in the witness box, trying to put the best possible gloss on otherwise uncomfortable matters being put to him.
7. Despite the passage quoted above from his Affidavit of 21 December 2018, I am unable to conclude that he has genuinely expressed contrition and remorse for the fact that he chose to pursue his own personal financial interests over complying with the undertakings which he had given to the Court. Mere lip service is clearly insufficient for this purpose.
8. Whilst I do not take this lack of genuine contrition and remorse into account as a factor warranting any increase in the starting penalty which would otherwise be appropriate, I am unable to make any positive allowance in Mr Nitopi's favour for this factor.

The criminal conduct directed at him and his family

1. I have earlier set out the criminal activity directed at Mr Nitopi and his family and noted that the principally organising perpetrators were arrested on 2 February 2018. I am satisfied that, for the purposes of sentencing Mr Nitopi on the first contempt charge to which he has pleaded guilty, this criminal activity constitutes a significant factor of mitigation in his favour for the reasons earlier explained. Although this also acts as a factor of mitigation with respect to the period up to 2 February 2018 for the purposes of sentencing on the second of the charges of contempt, this is of only a limited ameliorative factor given that I have concluded, for reasons earlier explained, that it was only the commencement of the contempt proceedings by the Applicant that finally spurred Mr Nitopi into activity to commence cleaning up the site.

Sentencing for comparable contempt conduct

1. Limited comparative material was put before me by counsel for the Applicant or Mr Doyle concerning what penalties might have been applied, in the past, to punish contempt where the offending conduct involved sites where waste had been stored or where activities analogous to addressing the consequences of a site being operated as a waste facility were involved.
2. Although I have carefully considered the comparative analysis in each of these decisions, as well as the outcome of each of the decisions itself, I am satisfied that none of that comparative material provides any assistance with respect to the offending conduct that here requires my consideration. There are a number of reasons for this.
3. First, applicable to each of the charges which Mr Nitopi faces in these proceedings, these breaches are breaches of undertakings voluntarily made to the Court for the purposes of settling Class 4 civil enforcement proceedings. The various instances in the handed-up material all appear to relate to circumstances where the contempt arose from breaches of orders imposed by the Court to remedy or restrain the breaches of the EP&A Act arising in the idiosyncratic circumstances of each case.
4. It is to be observed that this reason is, however, but a minor factor in my conclusion that there is little utility in reliance on this material for comparability purposes.
5. However, there are two further, separate reasons of significance as to why the comparability material effectively provides no assistance with respect to the two charges to which Mr Nitopi has pleaded guilty. The reasons are also distinctly different.
6. I have set out, in some detail, the entirely unusual (potentially unique) circumstances in which Mr Nitopi found himself as a consequence of the criminal activity addressed against him. As I have set out, I am satisfied that, until 2 February 2018 when Mr Nitopi was advised of the identity of the primary perpetrators of this criminal activity and the fact that they had been arrested, the impact on him provided a very significant reason to explain (albeit not entirely excuse, for the reasons earlier also explained) his failure to give effect to the first of his undertakings or to take any substantive steps with respect to the second of those undertakings.
7. Second, with respect to the period from 3 February 2018 onward, again for the reasons earlier outlined, I am satisfied that Mr Nitopi took no concrete steps to effect the removal of the at least 2,600 cubic metres of material from the site until after the Applicant had commenced these contempt proceedings against him.
8. This procrastination, for the reasons earlier also outlined, arose from his continuing decision to reside in Queensland and his determination that the removal of the material required his personal supervision.
9. I have explained why I do not consider that his explanation was valid and why I am satisfied, beyond reasonable doubt, that cost avoidance led to this delay.
10. The amount of the financial benefit Mr Nitopi obtained was so significant that, for the elements of the contempt arising after 2 February 2018, the comparable material handed up is also of no utility.

Specific deterrence

1. Counsel for the Applicant addressed, in his written submissions, why the Applicant proposed that a significant element of specific deterrence for Mr Nitopi was required to be incorporated in the appropriate penalties to be applied. It is unnecessary, for present purposes, to repeat those written submissions as, in closing oral submissions, counsel for the Applicant summarised the basis upon which it was said specific deterrence was necessary. The relevant extract from the transcript (Transcript, 6 February 2019, page 14, lines 35 to 39) is in the following terms: We have set out in our written submissions why we say specific deterrence also looms large in the sentencing exercise here, and given Mr Nitopi's evidence last week, that he made, if you like, a conscious decision not to engage contractors for the purposes of preferring his financial interests, specific deterrence certainly does come in to play.
2. Mr Doyle's closing submissions on this point adequately encapsulated what was put on Mr Nitopi's behalf as to why no element of specific deterrence was required. Mr Doyle submitted (Transcript, 6 February 2019, page 39, line 43 to page 40, line 3): Your Honour, there is an element that Mr Nitopi having given his apology is at the mercy of the Court. In his present circumstances, they're unlikely to be repeated. The cases talk about there being a dual objective and function of imposing a penalty for contempt, and they are, firstly, to punish disregard of court orders. I would suggest that Mr Nitopi hasn't disregarded the Court orders by correspondence from his solicitors. Clearly at all times he was aware of what he should be doing and was engaging with the council in that regard, but ultimately the fact that he didn't comply with the timeframe imposed is either a disregard of the importance of the orders, or it is that the circumstances that have befallen him are of such gravity that they provide a reasonable excuse and a reasonable complaint. He has apologised.
3. The need for specific deterrence for Mr Nitopi is nothing to do with the specific question of removal of waste from the site or arising from his undertaking, in the first of the undertakings he gave to the Court on 3 November 2017, not to undertake activities requiring development consent without having such development consent.
4. The specific deterrence that is necessary for Mr Nitopi is to imprint indelibly on his consciousness the necessity to give effect to positively operating undertakings given to a court within the timeframe for compliance with such undertakings.
5. That is, specific deterrence is necessary on the broader point of the importance of not giving undertakings to any court which are not complied with because of Mr Nitopi preferring his own financial commercial interests over complying with the timetable given in the undertakings to this Court.
6. Given my conclusion that, for the period commencing 3 February 2018 until the commencement of clean-up (even accepting the necessity for preliminaries commencing in mid-June 2018), there is no valid and acceptable explanation for delay and, second, there is no valid and acceptable explanation for the various breaks in the clean-up process once it actually commenced, I am of the view that there is not only the need for general deterrence by sending a message that it is unacceptable not to clean up such a site when an obligation has been created to do so, but there is also the necessity to deliver a significant message of specific deterrence to Mr Nitopi.
7. Whilst it may well be that the circumstances specific to this offending conduct will never arise again for him, nonetheless, there is, given his wilful disregard of his obligations after 3 February 2018, the necessity to reinforce to him that compliance with undertakings given to a court are not to be deferred in favour of his pursuit of his own personal business interests.
8. Therefore, confined to the second charge (having regard to the ameliorating factors concerning the first contempt and that contempt being subsumed in the second one), a degree of specific deterrence is appropriate and necessary to be incorporated in the starting penalty for this act of contempt.

Introduction

1. It is necessary to undertake a process of instinctive synthesis (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25) having regard to all of the objective factors of Mr Nitopi's contemptuous conduct, together with all of the subjective factors concerning Mr Nitopi himself. This process leads to my assessment of what would be the appropriate starting penalty to impose for each of the two contempts to which Mr Nitopi has now pleaded guilty.

The starting penalty for the first act of contempt

1. Although Mr Nitopi had been subject to elements of the criminal activities directed at him prior to his giving of the undertakings in early November 2017, these can be regarded as having intensified after the undertakings were given, culminating in the burglary of his home and the theft, inter alia, of records and computer equipment relating to his business activities. As earlier set out, Mr Nitopi gave evidence, written and oral, concerning the impact that these criminal behaviours had had on him.
2. I am satisfied that I should accept that that impact, although in existence when he knowingly gave the two undertakings to the Court in early November 2017, increased in intensity in its impact on him and his ability to function throughout the entirety of the period which was the subject of the undertaking to remove half the waste by the end of calendar year 2017.
3. Whilst not entirely excusing the complete lack of compliance with the undertaking which Mr Nitopi had freely offered, nonetheless, I accept that this is a significant exculpatory factor to be weighed in determining what is the appropriate penalty to impose for the first act of contempt (the absence of removal of any waste prior to the end of December 2017) with which Mr Nitopi is charged.
4. In this context, the starkly unusual nature of the impacts of the ongoing criminal activity directed toward him and his immediate family, in circumstances where Mr Nitopi had no knowledge of who were the primary perpetrators, means that comparison with other cases where contempts have been assessed and punished can, in reality, be regarded as irrelevant.
5. I am satisfied that the breach of the first undertaking, although not trivial, can be regarded as being toward the low end of the low range of such behaviour. Although wilful and not accidental in its characterisation, nonetheless, only a fairly modest starting penalty could be regarded as appropriate. For this contempt, little is to be gained for either specific or general deterrence because of the highly unusual nature of the circumstances giving rise to it (at least until 2 February 2018).
6. As can be seen from what I have earlier set out concerning the timing of the various events affecting Mr Nitopi, his failure to remove half of the waste from the site by the end of December 2017 triggered him committing the first of the two acts of contempt. Until 2 February 2018, this contempt continued to be significantly explicable by the criminal conduct directed at him and his son and daughter. However, after that date, no such excuse existed. From then, until the end of March 2018, I am satisfied that he had no valid basis for failing to address the necessity to remove half the waste from the site in a fashion compliant with the first of his undertakings. This first active contempt must be viewed in that fashion until that time.
7. On the other hand, after the beginning of April 2018, I am satisfied that his first active contempt became entirely subsumed by his second active contempt, namely, to have removed the entirety of the waste from the site by the end of March 2018. There is, therefore, a finite period of three months during which it is appropriate to punish him for failing to remove half the waste from the site with, for this period, one-third of it being significantly impacted by the criminal conduct directed at him and his son and daughter.
8. Having regard to the matters of the ongoing criminal conduct directed at Mr Nitopi and his family during this relevant period (particularly the burglary of his residence in December 2017, when coupled with all of the other objective and subjective factors concerning this first act of contempt), my instinctive synthesis leads me to conclude that the appropriate commencing sentence for of Mr Nitopi's breach of the first undertakings given on 3 November 2017 should be $6,000.
9. I have earlier explained why, by analogy with general sentencing principles, a degree of discount is appropriate to have regard to the utilitarian value of Mr Nitopi's guilty plea, a value which, as earlier explained, is appropriate to be of 10%. As a consequence, Mr Nitopi is to be fined $5,400 for the breach of his undertaking to remove half of the waste from the site by 31 December 2017.

The starting penalty for the second act of contempt

1. I have explained, in my consideration of the appropriate penalty to be imposed for the first charge, why I regard that failure to satisfy the first of his undertakings to the Court was subsumed, from 1 April 2018, by his breach of the second undertaking to remove the entirety of the waste from the site by that time.
2. Whilst that conclusion has the effect, for punishment calculation purposes in my assessment, of removing the necessity for the imposition of any element of the penalty specific to the first charge after that date, nonetheless, that continuing, subsumed contempt demonstrates the seriousness of the failure to remove the entirety of the waste by the end of March 2018. In making this observation, I am not to be taken to be proposing to impose what might be regarded as a compounded penalty rolling the first breach into the second, but merely making the observation that the second breach is of far greater significance.
3. There are a number of factors particular to this charge that increase Mr Nitopi's culpability with respect to this breach. For the reasons earlier explained as to why I have reached these conclusions, these factors are: 1. After 2 February 2018, there was no genuine reason why Mr Nitopi could not have taken effective steps to undertake removal of the waste from the site; 2. Although Mr Nitopi instructed his solicitors to inform the Applicant's legal representatives that an extension of time to comply with the undertakings would be needed, no such approach was made to the Court to seek extensions to either undertaking; 3. There was nothing which would have acted to prevent Mr Nitopi, to the extent it might have been necessary to visit Sydney from his self‑imposed exile in Queensland, from arranging for the removal of the waste and he did not do so; 4. Mr Nitopi took no positive steps to remove any of the waste from the site until after the Applicant commenced these contempt proceedings against him; 5. The method and subsequent timing of the various elements of the removal operation, when actually commenced, were motivated entirely by Mr Nitopi's desire to save the significant additional cost which would have been incurred had not waste separation been effected for the purposes of its disposal; and 6. There is no rational basis upon which it is appropriate to conclude, apart from the desire to save money, that the removal of the waste could not have been contracted to a competent removal contractor and that removal undertaken without any necessity for Mr Nitopi's personal presence during the course of that operation.
4. This second act of contempt is of an order of magnitude greater than that of the first for the reasons set out above. It warrants being treated as one which requires a significant penalty for reasons of both specific and general deterrence. Having undertaken the necessary instinctive synthesis of all of the relevant factors set out above, I am satisfied that the appropriate starting penalty for this active contempt is $80,000.

Mr Nitopi's pleas of guilty

1. Mr Nitopi only indicated an intention to plead guilty and acknowledge his two acts of contempt when this was conveyed to the Applicant in Mr Doyle's written submissions dated 18 January 2019 (it is also to be observed that the preparatory directions for this hearing made on 14 December 2018 had required these submissions to be filed by 20 December 2018).
2. There is nothing in any of the material before me that provides any basis to conclude that the Applicant had been informed of this intention at any earlier time. Indeed, the fact that counsel for the Applicant's written submissions, dated 13 November 2018, dealt extensively with the basis upon which Mr Nitopi's guilt of contempt should be concluded from the evidence, in a fashion anticipating a significant contest on whether Mr Nitopi was guilty of contempt or not, provides confirmation of this.
3. Although his pleas were late (and thus their utilitarian value could not be regarded as sufficient to attract the full 25% discount which, by analogy, might conventionally arise - R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309), the plea did have some limited utilitarian value. In these circumstances, I have concluded that it would be appropriate to allow a 10% discount on each of the penalties which I would otherwise have imposed to reflect this.
4. It is appropriate to give the same discount to Mr Nitopi of 10%, with respect to the penalty to be imposed on him for his first act of contempt. Application of a 10% discount to the starting sentence earlier set out means that the appropriate fine to be imposed on him for his first breach of the undertakings is $5,400.
5. It is also appropriate to give the same discount to Mr Nitopi of 10%, with respect to the penalty to be imposed on him for his second act of contempt. Application of a 10% discount to the starting sentence earlier set out means that the appropriate fine to be imposed on him for his second breach of the undertakings is $72,000.

Totality

1. It is also the position that, if the conduct giving rise to these two charges of contempt is appropriate to be regarded as being a single, continuous course of conduct rather than being two separate and divorced events, it is appropriate to adjust the overall penalty which would otherwise arise to be imposed to have regard to this.
2. I am satisfied that the nature of the offending conduct in breaches of each of the undertakings is, when viewed in totality for each breach, sufficiently significantly different that the two breaches cannot be regarded as comprising part of the same offending conduct so as to warrant any consideration of further moderation of penalty in a fashion that would arise had the breaches arisen out of a single, continuous course of conduct.

Costs

1. The position advanced on behalf of Mr Nitopi was that the unusual circumstances mitigating (in Mr Nitopi's case), Mr Nitopi's contempt meant that it was appropriate that I only order that Mr Nitopi pay the Applicant's costs on an ordinary, rather than the indemnity, basis. The element of Mr Doyle's written submissions advancing this proposition was in the following terms: 57. By his solicitor's letter of 17 January 291 Mr Nitopi has made an open offer of $10,000 to reimburse the Council for its costs in the proceedings. 58. The Council has proposed its costs be paid on an indemnity. In Canterbury City Council v Mihalopoulos [2012] NSWLEC 72 Pain J considered the issue of indemnity costs in contempt proceedings [46]: As observed in GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths [see 3rd ed, pp 560-561], indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla (No 4) [2011] NSWSC 62 at [49] suggests these are commonly awarded. Dal Pont states at 547 - 549 (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." (emphasis added) 59. In the exceptional facts of this case, in the absence of any behaviour demonstrating a contempt for the Court's authority, and the Defendant's efforts to avoid the cost of a contested hearing, it is not appropriate that indemnity costs be ordered.
2. Counsel for the Applicant submitted, in writing and orally, that I should order that Mr Nitopi pay the Applicant's costs of these proceedings on the indemnity basis. Counsel for the Applicant wrote in his submissions in reply: 56. The Court has a discretion to award the Applicant its costs on the ordinary or indemnity basis. 57. Factors relevant to the exercise of the discretion to order costs on an indemnity basis in contempt proceedings include that: 57.1 nothing should be done to deter a person from bringing a contempt to the notice of the court and the risk of having to bear any of the costs will often act as such a deterrent. A litigant who comes to Court to enforce an order or undertaking that has been breached by contempt should not, as a general proposition, be put out of pocket by bringing the proceedings; 57.2 an applicant in contempt proceedings will not usually be seeking a remedy on its own behalf but will be upholding the various public interests that are served by contempt proceedings; 57.3 the award of indemnity costs is an important sanction on a contemnor and, in some cases, a sufficient sanction to mark the court's condemnation of the breach of its orders or undertakings given to it. 58. These policy factors all point in favour of the exercise of the discretion to order indemnity costs in the instant case. First, nothing should be done that would operate as a disincentive for parties, particularly public authorities like the Applicant, bringing breaches of orders and undertakings to the Court's attention. Second, the Applicant as a public authority is not seeking to vindicate or enforce any private right. Rather, it is acting in the public interest in drawing the Respondent's contempt to the Court's attention and seeking, by these proceedings, to effect compliance by the Respondent with the undertakings proffered. Third, the award of indemnity costs would operate as an important sanction on the Respondent. The Applicant acknowledges that, for this reason, the award of costs on an indemnity basis is a matter that can be taken into account in determining the penalty that should be imposed on the Respondent. 59. Further, it is apparent that the contempt application was a necessary prompt to ensure the Respondent took substantive steps to comply with the undertakings. The proceedings thus served an important coercive and remedial purpose. The Applicant has also been put to the significant expense of preparing a case for hearing and issuing a number of subpoenas in relation to matters asserted in the Respondent's evidence. This could have been avoided had the Respondent been more candid in his dealings with the Applicant and entered a plea of guilty earlier in the proceedings. These matters point in favour of an award of indemnity costs. 60. The analysis of Moore J in Lake Macquarie Council v Gordon [2017] NSWLEC 122, in the context of contempt proceedings brought by local councils, is germane to the present matter: Although there is no hard and fast rule that mandates that costs be awarded on an indemnity basis against those found to be in contempt of court, the Prosecutor in such matters may reasonably expect that this would be the case unless there were some reason to depart from the position… Such an outcome is appropriate, here, because the Prosecutor is a public authority seeking to uphold the statutory planning regime and that Court's role in enforcing compliance with it and with the Court's own orders. … In particular, the Prosecutor, as a public authority responsible for the administration of planning laws within its local government area, is not seeking vindication of some private right by commencing and prosecuting these contempt proceedings. The Prosecutor is seeking to uphold the integrity of the planning system and, by doing so, not only proposing that Mr and Mrs Gordon be punished for their breach of court orders… but also to send a powerful message of general deterrence to warn others against doing so … 61. In the circumstances, it is appropriate that the Respondent pay the Applicant's costs on an indemnity basis.
3. Although there is no hard and fast rule that mandates that costs be awarded on the indemnity basis against those found to be in contempt of court, the Applicant in such matters may reasonably expect that this would be the case unless there were some reason to depart from that position (see AGL Energy Ltd v Hardy (No 3) [2017] FCA 952, at [8] and [9], O'Callaghan J).
4. In these contempt proceedings against Mr Nitopi, there is no reason why it would be inappropriate to make costs orders against him on the indemnity basis.
5. In particular, the Applicant, as a public authority responsible for the administration of planning laws within its local government area, is not seeking vindication of some private right by commencing and prosecuting these contempt proceedings. The Applicant is seeking to uphold the integrity of the planning system and, by doing so, not only proposing that Mr Nitopi be punished for his breach of undertakings to the Court (undertakings intended to rectify breaches of the planning system) but also to send a powerful message of general deterrence to warn others against doing so.
6. I have, therefore, concluded that it is appropriate to award the Applicant its costs against Mr Nitopi on the indemnity basis.

Orders

1. The orders of the Court are: 1. Mr Guiseppe Nitopi (the Respondent) is guilty of contempt of court by failing, by 31 December 2017, to remove half of the waste located on 70-72 Wellington Road, Riverstone, contrary to the undertaking to the Court given by him on 3 November 2017 to do so; 2. The Respondent is fined $5,400; 3. The Respondent is guilty of contempt of court by failing, by 31 March 2018, to remove all of the waste located on 70-72 Wellington Road, Riverstone, contrary to the undertaking to the Court given by him on 3 November 2017 to do so; 4. The Respondent is fined $72,000; and 5. The Respondent is to pay the Applicant's costs on the indemnity basis.

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 June 2019