Blacktown City Council v Reid

Land and Environment Court (NSW)|2003-05-23|Before: Pearlman J

Introduction 1 By notice of motion, Blacktown City Council seeks a finding that the second respondent, Mark Reid (also known as Craig Floyd), is guilty of contempt of an order of this Court, and it seeks an order punishing him for that contempt. 2 The substantive proceedings have a long history. They involved the council seeking declaratory and injunctive relief against four respondents, Ms Misty Wilkie, Mr Mark Reid, Graveyard Recycling Pty Ltd and Mr Mario Constantine, in respect of the deposit of waste material ("the waste pile") on land being part of lot 2 in DP 781151 situated at the corner of Grange Avenue and Richmond Road, Marsden Park ("the site") - see Blacktown City Council v Wilkie and Ors (2001) 119 LGERA 255 ("the principal judgment"). 3 The present application concerns only the second respondent, and the application can be understood by reference to the following relevant facts:

(1) On 6 December 2001, in the substantive proceedings, the Court made an order against the second respondent in the following terms: 5. … order the second respondent…to remove from the site existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order. This order shall remain on foot and with full force and effect whether or not order 6 has come into operation. The reference to "order 6" was a reference to an order in similar terms made by the Court against the first respondent, to come into effect if the second respondent had failed to fully comply with order 5 within the time specified.

(2) On 24 June 2002, the Court made a finding that the second respondent was guilty of contempt of order 5. He was sentenced to a period of two months' imprisonment. However, the sentence was suspended on terms for two months, that is, until 23 August 2002, to allow the second respondent to purge his contempt. (On 3 July 2002, the terms of the suspension were varied in a manner not presently material).

(3) The suspension of the sentence was successively extended until 27 August 2002, until 9 September 2002, until 1 October 2002, until 29 October 2002 and until 17 December 2002.

(4) On 17 December 2002, the second respondent's application for a further suspension of sentence was denied, and a warrant for his committal to prison was issued.

(5) The second respondent served the period of two months' imprisonment from 17 December 2002 until 16 February 2003. 4 The council now alleges that the second respondent has continued to disobey order 5 and that the waste material has not been removed from the site as order 5 required.

Is the second respondent in breach of order 5? 5 The council relied upon the evidence of Mr G R Apps, a planner in the council's employ, and of Mr J Maltese, who carries on business on land neighbouring the site. Their evidence was not challenged. 6 Mr Apps's evidence is that he inspected the site on 24 February 2002, on 2 April 2003, on 11 April 2003, and on 28 April 2003. On each occasion he observed the waste pile, and saw that no significant amount of waste material had been removed from it since 17 December 2002. 7 Mr Maltese corroborated Mr Apps' evidence. He also gave evidence of observing the second respondent on the site on a number of occasions commencing on 11 March 2002. He observed the respondent remove a total of nine loads of waste material from the waste pile, in a box trailer, on those occasions, being 11 March 2002 (one load), 18 March 2003 (one load), 27 March 2003 (four loads), 28 March 2003 (one load), 1 April 2003 (one load) and 3 April 2003 (one load). 8 There is no reliable estimate of the volume of the waste pile, but in par 9 of the principal judgment I referred to it as "a mountain of waste". There does not seem, however, to be any doubt that the removal of nine trailer loads of waste material has not significantly reduced the volume of the waste pile, which is the opinion that Mr Apps expressed in his evidence. 9 The statement of charge specifies the alleged contempt as failing to complete the removal of the waste material as at 7 February 2003. The evidence I have outlined demonstrates that failure as having occurred as at that date and as having continued until 28 April 2003. I am content however, to confine my finding of contempt to the date as charged. 10 Having regard to the unchallenged evidence, I am satisfied beyond reasonable doubt, and I so find, that, as at 7 February 2003, the second respondent had not removed the waste material from the site as order 5 required, and he continued, as at that date, to disobey order 5.

The orders which the council seeks 11 In the event that the Court was to find the second respondent guilty of contempt, the council seeks an order committing him to prison for a period of six months, but suspending that sentence for a period of three months upon conditions which may be summarised as follows:

(1) that he remove from the site a minimum of 500 tonnes of waste per calendar month;

(2) that he give at least four hours notice of the removal of any waste from the site to a nominated officer of the council so that the officer can attend the site and personally see the waste being removed;

(3) that both he and the officer endorse on a document the date and time of each load of waste taken from the site, their respective estimates of the amount by tonne of waste removed in each load, and the basis of each such estimate;

(4) that only the waste so recorded as removed from the site shall be included in the calculation of the 500 tonnes. 12 In addition, the council sought a note to be endorsed on the order relevantly as follows: In the event that the terms … have been complied with by the Respondent during the period of suspension of the sentence … the Court will grant a further suspension … for a period of three months upon the same terms, and will continue to grant suspensions…each time for a period of three months upon the same terms, provided that the Respondent has complied with terms … during the period of suspension prior to the relevant further application for suspension, until Order 5 … had been complied with in full.

The Court's power to punish 14 The learned authors of Borrie & Lowe, The Law of Contempt, third edition, make the following statement at pp 630 - 631: A particular headache for the courts is the continually obdurate contemnor. There is authority for the view that where an offender repeatedly commits contempt then the courts may impose increasingly longer sentences. However, on another occasion the court has pointed out the ultimate futility of the strategy. It has to be said that where a contemnor has proved obdurate despite imprisonment, subsequent committals may be little more than a gesture on the court's part to uphold its authority. At any rate a court should think hard before imposing a long sentence. 15 One of the authorities referred to in this passage is Yager v Musa [1961] 2 QB 214. That was a case where the defendant was subject to an order restraining him from causing a nuisance or annoyance to the plaintiff or his family. The defendant was committed to prison for contempt of that order, but, having been released from prison, he again disobeyed the order and was committed to prison a second time. Upon release, he disobeyed the order yet again and was committed to prison for a third time. The matter with which the English Court of Appeal was concerned was an application by the defendant for an immediate release from prison. At p 219, Lord Devlin said: In my judgment, the period of imprisonment that the defendant should now serve should be one - this being his third period - which is substantially longer than the second one, which evidently was not sufficient. If when he is released after that he gives any further evidence of disobedience, the inevitable result will be that he will be brought back before this court again and yet a longer period will be imposed upon him, and, if that is not sufficient, then the court will have to impose a longer period still which may amount to something that will keep him in prison for a very long time indeed. 16 Reference may also be made to the decision of the English Court of Appeal in B v B (Contempt: Committal) [1991] FCR 386, where Purchas LJ, at pp 397 - 398, quoted with approval a passage from an unreported judgment of Lord Denning MR (Danchevsky v Danchevsky (No 2) (unreported, 10 November 1977)), where Lord Denning stated, in contempt proceedings, that "… a person can only be punished once for one offence if it is a single offence … It may be different with a continuing offence: for he may then be punished subsequently for a subsequent continuance". 17 In this case, order 5 cast a continuing obligation upon the second respondent. Order 5 remained on foot and with full force and effect whether or not a similar obligation came into force upon the first respondent. The second respondent disobeyed order 5 during the period from December 2001, when order 5 was made, up to June 2002. On 24 June 2002, he was found guilty of that contempt and punished for his disobedience. From June 2002 until 7 February 2003, he has continued to disobey order 5. It makes no difference that he was serving a term of imprisonment up to 16 February 2003 - the obligation remained upon him to comply with order 5. It is within the Court's power to punish him for that continuing disobedience by committing him to prison for a longer period than the period he has already served.

The appropriate punishment 18 Punishment for contempt has a dual purpose. One purpose is to vindicate the authority of the court, and the other purpose is coercive - Witham v Holloway (1995) 183 CLR 525 at 533. 19 Here, the contempt is serious. There are two reasons for so regarding it. First, the continued existence of the waste pile has environmental consequences. One consequence, which I noted in pars 65-66 of the principal judgment, was the risk of failure of the waste pile and sloughing of the waste into the stream and road adjacent to the site. Another consequence is its visual impact. Mr Apps noted, on his inspection of the site on 11 April 2003, that the waste pile has grass and noxious weeds growing over it, and the photographs of the site which he took on that day show that it is an unsightly mountain of demolition and other waste. In these circumstances, the coercive nature of the punishment is particularly apt. 20 The second reason for regarding the contempt as serious is the continued disobedience of order 5 by the second respondent, despite his committal to prison. He has made sporadic, meagre and ineffective attempts to remove the waste material, but, on Mr Apps' unchallenged evidence, the height, scale and appearance of the waste pile has not changed, and only an insignificant portion of the material has been removed. 21 For these reasons, I conclude that it is appropriate to impose another and longer sentence of imprisonment upon the second respondent, and I am prepared to fix the period of that sentence at six months. 22 The question then arises as to whether the Court should suspend that sentence to allow a further opportunity for the second respondent to purge his contempt. I consider that a period of suspension is appropriate. Committal to prison is a grave punishment, and the second respondent should be given another opportunity to remove the waste. 23 The principal issue in this regard is the terms upon which such a suspension should be made. In order to consider the terms which the council has suggested, it is appropriate to note the second respondent's evidence, which the council did not challenge:

(1) The second respondent has a dependent wife, and three dependent children, aged 2, 5 and 11;

(3) He is currently employed as a truck driver, and receives an after-tax wage of $850 per week;

(4) He had initially utilised an excavator in his early efforts at removing the waste material, but that machine had been repossessed. His only equipment at the present time is the box trailer which Mr Maltese observed, and which was said to have a capacity of about three tonnes;

(5) It was said on the second respondent's behalf by his solicitor, Mr Dennis, from the bar table, that, in the present circumstances, the second respondent would have to load the trailer by hand, which Mr Maltese observed him doing on one occasion; (6) The second respondent has deposed to the fact that he is under an obligation to pay a fine of $95,000 imposed upon him in other proceedings in this Court ( Penrith City Council v 24/7 Waste Bins Pty Ltd and Anor [2002] NSWLEC 186) and it is to be noted that obligations to remove waste material from certain land were imposed upon him in those proceedings;

(7) Compliance with order 5 will involve the second respondent in expenses, because licensed waste facilities charge fees for the acceptance of waste. 24 Having regard to all those matters, Mr Dennis raised two issues about the terms to be imposed upon a suspension of sentence. The first, and most important, issue is the ability of the second respondent to remove 500 tonnes of material each month. Mr Dennis submitted that the second respondent would, in his present circumstances, be completely unable to remove 500 tonnes of material each month. However, Mr Dennis conveyed to the Court the willingness of the second respondent to remove one tenth of that amount each month, that is, 50 tonnes. After anxious consideration, I feel that I must accept this submission. The removal of 500 tonnes of material each month by hand and by means of a box trailer with a capacity of 3 tonnes will necessitate about 160 loads each month. That seems to me to be totally unrealistic. Of course, much more waste than 3 tonnes could in a single load be removed with proper equipment, such as an excavator and a truck of higher capacity. But the second respondent's financial and employment circumstances do not give me any confidence that he could provide such proper equipment. It is not appropriate to impose a condition which, on the evidence presently available to the Court, seems bound to fail, although I recognise that removal at the rate of 50 tonnes per month will possibly mean that years will elapse before the waste pile is completely removed. Accordingly, with some reluctance, I propose to fix the condition at 50 tonnes per month. 25 Mr Dennis secondly submitted that the requirement for the attendance of a council officer each time a load was taken was unduly onerous in the circumstances where the second respondent is employed on a full time basis, and where, as a consequence, he would attend the site only when spare time was available to him, such as weekends. However, I feel that this condition should be imposed. It imposes a regime upon the second respondent and allows the council to monitor the removal of the waste, which seems to me to be appropriate in the light of the second respondent's haphazard and meagre attempts at removal to date. 26 A final matter concerning the terms is the council's request for a suspension of three months and a note that the Court will grant further consecutive suspensions of three months. There are two problems with this suggestion. The first is that a period of three months is, in my opinion, too short. The second respondent must have the opportunity to show that he is committed to obeying order 5 by meeting the terms on a regular basis. Six months is more appropriate for that purpose. Secondly, I am not prepared, nor could I properly do so, to bind the Court to grant further suspensions even if the terms are fulfilled. No doubt, the Court is likely to favourably receive an application by the second respondent for an extension of the period of suspension in circumstances where the second respondent is able to show that the terms have been complied with, but each such application must be considered in the relevant circumstances at the time the application is made.

Orders 27 In accordance with the foregoing, I have concluded that I should commit the second respondent to prison for a period of six months, but that I should suspend that sentence for a period of six months, upon the terms sought by the council except as to the amount of waste to be removed each month, which should be fixed at 50 tonnes instead of 500 tonnes. 28 My formal orders are as follows:

(1) I find the second respondent guilty of contempt of this Court for continuing to disobey order 5 made by this Court in these proceedings on 6 December 2001 in that the second respondent has failed as at 7 February 2003 to complete the removal from the land known as part lot 2 in DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park ("the site") the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site ("the waste") and the transfer of the waste to a licensed waste management facility in accordance with order 5.

(2) I punish the second respondent, Mark Reid (also known as Craig Floyd) by committal to prison for a period of six months.

(3) I suspend order 2 pursuant to Part 55 rule 13(3) of the Supreme Court Rules 1970 for a period of six months on the following terms: (a) The second respondent remove from the site a minimum of 50 tonnes of the waste per calendar month;

(b) The second respondent give at least four business hours' (ie four hours between 9 am and 5 pm Monday to Friday excluding public holidays) prior notice to an officer of the applicant nominated by the applicant to the second respondent care of Dennis & Co, solicitors ("the nominated officer") on a telephone number nominated by the applicant to the second respondent care of Dennis & Co, solicitors, of the removal of any of the waste from the site so that the nominated officer can attend the site and personally sight the waste being removed.

(c) The second respondent and the nominated officer shall each write on the same document at the site, at the time of removal of each load of waste from the site, the date and time of each load of waste taken from the site, their respective estimates of the amount of waste by tonne of waste removed in each load, and the basis upon which such estimate has been made. The nominated officer shall retain the original document and bring it to the site each time the second respondent has given prior notice in accordance with paragraph (b) of these terms and shall provide a photocopy of the document to the second respondent care of Dennis & Co, solicitors, within 48 hours of each specified load of waste removed from the site.

(d) Only waste recorded as removed from the site on the document referred to in paragraph (c) of these terms shall be included in the calculation of 50 tonnes referred to in paragraph (a) of these terms.

(4) I order the second respondent to pay the costs of the applicant relating to the notice of motion for contempt to which this judgment relates, such costs to be as agreed or as assessed.

(5) I grant liberty to either party to apply on three days' notice.

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.

CITATION : Blacktown City Council v Reid [2003] NSWLEC 120 APPLICANT Blacktown City Council PARTIES : RESPONDENT Mark Reid also known as Craig Floyd (second respondent in the proceedings) FILE NUMBER(S) : 40025 of 2001 CORAM: Pearlman J KEY ISSUES: Contempt :- continuing contempt - penalty - committal - suspension on terms LEGISLATION CITED: B v B (Contempt: Committal) [1991] FCR 386; Blacktown City Council v Wilkie and Ors (2001) 119 LGERA 255; CASES CITED: Penrith City Council v 24/7 Waste Bins Pty Ltd and Anor [2002] NSWLEC 186; Witham v Holloway (1995) 183 CLR 525; Yager v Musa [1961] 2 QB 214 DATES OF HEARING: 13/05/2003 DATE OF JUDGMENT: 05/23/2003

(2001) 119 LGERA 255

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