Blue Mountains City Council v Fowler

Land and Environment Court (NSW)|2007-07-11|Before: Jagot J

CITATION : Blue Mountains City Council v Fowler [2007] NSWLEC 476

APPLICANT Blue Mountains City Council PARTIES : RESPONDENT Julian James Ronald Fowler

KEY ISSUES: Contempt :- failure to comply with Court's order - motion adjourned to allow compliance - breach proved - breach wilful but not in deliberate defiance of Court - fine imposed - order vacating fine if minor outstanding works completed as required - finding of contempt and order for payment of Council's costs

LEGISLATION CITED: Local Government Act 1993

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] 161 CLR 98 ; CASES CITED: Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 ; Lade & Co Pty Ltd v Black [2006] QCA 294 ; Witham v Holloway [1995] 183 CLR 525

APPLICANT Ms M Linkenbagh, solicitor SOLICITORS Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT Mr Julian JR Fowler (in person) SOLICITORS N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BLUE MOUNTAINS CITY COUNCIL Applicant

JULIAN JAMES RONALD FOWLER Respondent

JUDGMENT Jagot J: 1 This is a notice of motion by Blue Mountains City Council for orders that the respondent, Julian James Ronald Fowler, be found guilty of contempt of Court for disobeying order 1 made by this Court in these proceedings on 31 January 2007. The Council seeks that the respondent be punished for disobeying that order by fine, and an order that the respondent pay the Council's costs of the notice of motion.

2 The statement of charge against the respondent is as follows: That the Respondent is guilty of contempt of the Court in that in breach of Order 1 made by this Honourable Court on 31 January 2007 the Respondent did not complete all corrugated iron roofing to the full extent of the awning with roofing sheets that are not corroded and did not complete all guttering and downpiping to the new awning and connect this to the street kerb in respect to the premises comprised in Folio Identifier 1/67166 and known as 29 Govetts Leap Road, Blackheath within forty-five (45) days of the service of the order upon the Respondent.

3 The respondent, Mr Fowler, has formally entered a plea of not guilty to the charge although for reasons I will explain further it is clear that Mr Fowler accepts that he did not complete the works in accordance with the Court's order.

4 To understand the genesis of the Council's notice of motion it is necessary to refer to the Class 4 application the Council filed on 27 October 2006. In the Class 4 application the Council sought an order that the respondent comply with the terms of an order the Council had served on 18 April 2006 under s 124 of the Local Government Act 1993. Section 124 provides that a council may order a person to do or refrain from doing a thing specified in column one of a table if the circumstances specified opposite it in column two exist and the person comes within the description opposite it in column three. Item 29 in the table to s 124 appears under the heading "Orders Requiring the Protection or Repair of Public Places". Item 29 provides in column one under the heading "To Do What?", "To alter or repair a work or structure on, over or under a public space". Column two of the table headed "In What Circumstances?" has next to item 29 "It is in the public interest to do so" and column three under the heading "To Whom?" has against item 29 "Owner of the work or structure".

5 In the Dictionary to the Local Government Act 1993 a public place is defined in a manner which includes, relevantly, a public road. The order that the Council served on Mr Fowler in his capacity as the owner of the land to which I have referred was an order dated 18 April 2006 identifying the following schedule of works required to be completed within thirty days of service of the order, that is, by 22 May 2006 as follows: a. Complete all corrugated iron roofing to the full extent of the awning with roofing sheets that are not corroded. b. Complete all guttering and downpiping to the new awning and connect this to the street kerb.

6 On 31 January 2007 the Class 4 application came before this Court and the Court made orders as follows: 1. The respondent shall comply with the terms of an Order of Blue Mountains City Council made on 18 April 2006 to: (a) Complete all corrugated iron roofing to the full extent of the awning with roofing sheets that are not corroded. (b) Complete all guttering and downpiping to the new awning and connect this to the street kerb. in respect of the premises comprised in Folio Identifier 1/167166 and known as 29 Govetts Leap Road, Blackheath within forty-five (45) days of the service of this order upon the Respondent. 2. The Respondent shall pay the Applicant's legal costs of these proceedings.

7 An affidavit of a Thomas Pfeifle, licensed commercial agent, sworn 12 February 2007 deposes to the fact that on 9 February 2007 Mr Pfeifle did duly serve the respondent Mr Fowler with the orders of the Court dated 31 January 2007 by delivering the order to Mr Fowler personally at 3 Bridge Road Hornsby, being Mr Fowler's usual place of abode. Accordingly the orders of the Court made on 31 January 2007 required the works to be carried out and completed within 45 days of 9 February 2007.

8 According to an affidavit of Colin Glen Wood sworn 11 April 2007, Mr Wood inspected the premises on 28 March 2007. Mr Wood is the Council's Principal, Development Monitoring Team. Mr Wood is an environmental health and building surveyor, and holds a Bachelors degree in building and environmental health and a Masters degree in building surveying. On 28 March 2007 Mr Wood inspected the premises known as 29 Govetts Leap Road, Blackheath and observed that since his last inspection, although some purlins had been fixed, the works required by the Court's order in the proceedings remained outstanding. Mr Wood annexed a series of photographs which he took on 28 March 2007 identifying the building and clearly showing that the works had not been completed. Mr Wood also gave oral evidence in these proceedings that he attended the premises again on Friday 18 May 2007 at which time he took photographs. Further Mr Wood attended the premises on 23 May 2007 when additional photographs were taken. All of those photographs are in evidence and clearly show that although some minor works had been carried out, including minor guttering on the awning and some painting, the whole of the works had by no means been completed or indeed even substantially commenced by that time because the awning remained without, for example, the corrugated iron roofing. Although Mr Wood was cross-examined by Mr Fowler and agreed that he had observed painting of the fascia and in and around the downpipes and had observed some other minor works, nothing in Mr Wood's cross-examination conflicted with his primary evidence, that is, the works had not been completed as required by the Court's order within the relevant 45 day period.

9 Mr Fowler gave evidence in relation to the notice of motion by way of two affidavits, the first sworn on 24 May 2007, the second sworn on 11 July 2007, and oral evidence. Through that evidence it became clear Mr Fowler's position was that he accepted he had not fully complied with the Court's order as required by the terms of the order but believed he had attempted to comply. Things, however, were taking much longer than he expected. At all times up until 24 May 2007, a date to which I shall return, Mr Fowler had been attempting to comply with the Court's order by his own efforts rather than through retaining appropriately qualified contractors.

10 I mention the date of 24 May 2007 because on that day the notice of motion for contempt was returnable for hearing. When it became clear from the evidence that Mr Fowler accepted that he had not complied with the Court's order in accordance with its terms, I adjourned the hearing of the notice of motion to a further hearing as soon as possible after 29 June 2007. The purpose was to enable Mr Fowler to have an opportunity, if he wished to take it, of carrying out the works required by the order albeit not within the time constraints imposed by the order.

11 The matter has come back before me today for the completion of the hearing of the notice of motion. The parties have agreed that the current position in relation to the works is accurately set out in a memorandum that Mr Wood prepared dated 10 July 2007 and which has become, by consent of the parties, exhibit C in the proceedings. This memorandum confirms that Mr Wood re-inspected the premises on 10 July and determined that only the following items were outstanding: (a) flashings are required to be installed at the walled in section and around the steel tension tie rods; (b) one of the downpipes in Govetts Leap Road needs to be connected to the guttering; (c) the end of the guttering in Govetts Leap Road needs end capping.

12 Mr Fowler agrees that these works have not in fact been carried out but submits that it was his intention to complete the whole of the works before today's hearing. He was not aware of those incomplete works and has every intention of ensuring that they are completed within a reasonable time. In his further affidavit of 11 July 2007, Mr Fowler has set out in annexure A to that affidavit the efforts he made from 26 May 2007 onwards to obtain contractors to carry out the necessary works. He has also in that affidavit and by his oral submissions said that in his view there is a larger issue about why he should be required to provide Council infrastructure and that the Council has not adequately disclosed to him the reasons why this is so. Mr Fowler accepts that these concerns do not alter the fact that he did not comply with the Court's order as required, but submits it explains why he may have given the impression that he had been, to put it colloquially, dragging his feet.

13 The Council for its part accepts that Mr Fowler has almost completed all of the works, but says considering the whole sequence of events as disclosed by the evidence, the Court would be satisfied beyond reasonable doubt that Mr Fowler was in contempt of Court by failing to comply with the terms of the Court's order as required and Mr Fowler should not be found to be truly contrite for his contempt. Accordingly, in all the circumstances, the Court would make a finding of contempt, impose a fine on Mr Fowler in the order of about $2,000 on the basis that the fine be suspended for a period of 21 days so that, if before the expiry of the 21 day period, the outstanding works identified by Mr Wood have been completed, the order for the payment of the fine would be vacated. But if those works had not been carried out within that period, the order for the payment of the fine would take effect. The Council also submits that it should have its costs of the notice of motion as agreed or as assessed.

14 Biscoe J identified the relevant principles relating to charges of contempt of court in Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 at [27] to [32]. In those paragraphs, Biscoe J summarises the relevant principles derived from Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 and Witham v Holloway (1995) 183 CLR 525.

15 In short the principles are as follows: (1) There is no justification for the allocation of a different standard of proof for civil or criminal contempt. Accordingly all charges of contempt must be proved beyond reasonable doubt, see Witham v Holloway at 534. (2) The court has a power to fine for civil contempt where the breach has not been the result of casual, accidental or unintentional disobedience, see Witham v Holloway at 541. (3) If the breach of the court's order has not been casual, accidental or unintentional, then the breach will be relevantly wilful so as to enliven the court's power to impose a fine. (4) There must of course be actual disobedience to the court's order and there cannot be such disobedience if, for example, the alleged contemner does not know of the order or where disobedience has arisen by reason of circumstances outside the control of the alleged contemner, see Lade & Co Pty Ltd v Black [2006] QCA 294 at 63 cited by Biscoe J at [32].

16 In this case I am satisfied beyond reasonable doubt that Mr Fowler did not comply with the Court's order of 31 January 2007 in accordance with the terms of that order. I am also satisfied beyond reasonable doubt that the non-compliance cannot be described as casual, accidental or unintentional disobedience. Mr Fowler was present in Court when the order was made, was personally served with the order by Mr Pfeifle and, accordingly, was aware that he was required to complete the necessary works within 45 days of 9 February 2007. Although I accept that part of the explanation for Mr Fowler's failure was inexperience, together with attempting to carry out the works by himself rather than with a contractor, and some degree of frustration with the Council (about which I can make no comment one way or another), the inescapable fact is that it was within Mr Fowler's control to complete the works but he failed to do so as required by the order. After the part heard hearing before me on 24 May 2007, it is plain that Mr Fowler had a better appreciation of the seriousness of allegations of contempt of court. It is clear from his affidavit of 11 July 2007 that he did, almost immediately thereafter, take active steps to ensure that the works could be completed. The agreement that the only outstanding works today are the three that I have identified shows that at all relevant times Mr Fowler could have ensured that he complied with the Court's order but did not do so. In these circumstances, although I accept that Mr Fowler's failures to comply with the Court's order were not done in deliberate defiance of the court, they were nevertheless relevantly wilful.

17 Accordingly, I find the contempt proved. There then is a question of what should occur. I agree with Ms Linkenbagh, the Council's solicitor, that one way or another this matter has to be brought to an end today. The question is whether that can occur by the method that has been proposed. In terms of Ms Linkenbagh's suggested orders, I am satisfied it is appropriate that Mr Fowler's contempt of court should be punished by way of a fine that is appropriately proportionate to the seriousness of the contempt proved taking into account the fact that the works are now nearly completed and that Mr Fowler now does appreciate the seriousness of his failure to comply with the Court's orders. Ms Linkenbagh suggested a fine in the sum of $2,000 which would be suspended for a period suggested to be 21 days. If the outstanding works have been completed within that period, the order for the fine would be vacated. But if the works have not been completed within that period, the order for the fine would become operative on and from that date. In effect, if Mr Fowler completes the works as required, there would be a finding of contempt and an order for costs in favour of the Council but no other punishment having regard to all of the circumstances.

18 In my view what Ms Linkenbagh has put forward, if it can be formulated into an appropriately enforceable order, is an eminently reasonable suggestion in all of the circumstances. This is not a matter where I think there should be no fine at all and merely an order for payment of costs because, as Ms Linkenbagh correctly submitted, the works were within Mr Fowler's control at all times. There was ample opportunity to comply within the relevant 45 day period and, even if not by then, certainly by 24 May 2007 when the notice of motion first came before me. For those reasons I am satisfied it is an appropriate exercise of discretion that there should be a fine imposed, but I also accept Ms Linkenbagh's suggestion that the order for the fine should be vacated if in fact the works are completed. [Discussion with parties about the form of the order]

19 Accordingly, the Court: (1) Finds the respondent, Julian James Ronald Fowler, guilty of contempt of Court as charged in the statement of charge dated 12 April 2007 and filed in Court on 13 April 2007. (2) Subject to orders 3 and 4, orders the respondent to pay a fine of $2,000 within 28 days of the date on which this order takes effect as set out in order 3, such fine payable to the Registrar of the Court. (3) Orders that the operation of order 2 be suspended until Friday, 24 August 2007. (4) Orders that order 2 be vacated if the Respondent carries out the following works to the premises at 27-29 Govetts Leap Road Blackheath (being the land in Folio identified 1/167166) by 5pm on Wednesday, 8 August 2007: (a) The wall/awning flashing is to be installed for the full length of the awning and flashings are to be provided around all steel tension tie rods so that rainwater cannot penetrate through the structure of the awning;

(b) The southernmost down-pipe in Govetts Leap Road, nearest to Collier's Arcade, is to be connected to the roof gutter attached to the awning; and

(c) The stop-end of the southernmost point of the awning roof guttering in Govetts Leap Road nearest Collier's Arcade is to be installed. (5) Orders the applicant to notify in writing the respondent and the Registrar of the Court by 4:00pm on Monday, 13 August 2007, whether or not the applicant accepts that the works have been completed as referred to in order 4. (6) Liberty to restore to each party on 3 days' notice in relation to the completion of the works referred to in order 4, such liberty only exercisable before 4:00pm on Monday, 20 August 2007. (7) Order the respondent to pay the applicant's costs of the notice of motion filed on 13 April 2007 as agreed or assessed. (8) The exhibits may be returned. ****************************

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