Mr Patrick Noonan of Counsel, instructed by Lennon Mazzeo Lawyers

Mr Tim Best of Counsel, instructed by Victorian Legal Aid

1. On 17 November 2006, Kosmos Dimopoulos appeared as a Respondent to an application brought against him in this Tribunal's Real Property List.
2. The Applicant, Heidi Bradford, was the owner of a flat in a high-rise set of owner-occupied units in East St Kilda. Her exact address is Unit 1, 20 Loch Avenue, St Kilda East. Mr Dimopoulos is the owner of the flat directly above the Applicant's unit. His address is Unit 10, 20 Loch Avenue, St Kilda East. The Applicant brought her complaint under the Water Act 1989. She complained that water was flowing from Mr Dimopoulos' unit into her bathroom. She said that water was dripping from her bathroom ceiling, causing significant damage.
3. The Applicant's claim was heard by Senior Member Cremean. Both the Applicant and Respondent appeared in person without legal representation. The Tribunal arranged and paid for a Greek interpreter for Mr Dimopoulos at the hearing. Both Applicant and Respondent had earlier attended two directions hearings at which the listing of this matter and the evidence required for it were discussed, and preliminary Orders made. On both these occasions the Tribunal had also arranged and paid for an interpreter for Mr Dimopoulos.
4. No Orders were made on 17 November 2006. I presume that Senior Member Cremean reserved his decision on that day.
5. The file shows that Orders were made and Reasons provided by Senior Member Cremean on 24 November 2006.
6. Senior Member Cremean found that the Applicant had a serious water problem in her flat which was caused by the escape of water into her unit from the Respondents unit. He found that this water flow was caused by the failure of Mr Dimopoulos to adequately repair his water pipes. He estimated damage to her flat in the sum of $1000.00 and accepted that the leaking was still continuing, so much so, that when Ms Bradford took a shower she could feel cold water splashes on her dropping from the leaking ceiling. He accordingly ordered:-

"1 The Respondent is restrained from allow water flow ("the water flow") from Unit 10, 20 Loch Avenue East St Kilda (the Respondent's apartment) to Unit 2, 20 Loch Avenue East St. Kilda and/or into the cavity wall of the building at 20 Loch Avenue East St Kilda and must forthwith stop such water flow.

1. By 8 December 2006 the Respondent must repair the pipes in the Respondent's apartment that have caused the water flow.
2. By 15 December 2006 the Respondent must pay the Applicant the sum of $1000.00."
3. These Orders were noted on the file as having been posted with an enclosed letter to both Applicant and to Mr Dimopoulos on 27 November 2006.
4. Attached to the Order which was posted were Reasons for Decision. In the last paragraph of his Reasons the Member said this:-

"I would wish to make it very clear to the Respondent that a failure to comply with the orders I am making could be contempt of the Tribunal for which there are severe penalties."

1. On receiving a copy of the Order, Ms Bradford realised that her flat had been misdescribed as Unit 2, not Unit 1. She wrote to the Tribunal pointing out the error and a further Order was made in Chambers on 29 November by Senior Member Cremean. The Order amended the description of the Applicant's unit to Unit 1, 20 Loch Avenue, St Kilda East. The Tribunal file shows that this amending Order was posted to the parties on 30 November 2006.
2. Water continued to flow from Mr Dimopoulos' unit into the bathroom ceiling of Ms Bradford's unit. Mr Dimopoulos did not repair the pipes. He did not pay the $1000.00 as ordered.
3. Ms Bradford instructed solicitors to enforce the Tribunal's Order. She kept a record of water leaks from her bathroom ceiling from February to April 2007. Her record showed the leaks to have occurred on almost every day over that period. Her solicitors sent a letter to Mr Dimopoulos on 2 March 2007 demanding that he comply with the Order. The final paragraph of that letter read (inter alia) as follows:-

"We request that you comply with the order by Friday 9 March 2007. Otherwise we will have no option other than to pursue this matter under section 133 of the VCAT Act which may result in your imprisonment or fine."

1. The solicitors for Ms Bradford finally issued an application seeking that Mr Dimopoulos be punished for contempt for failing to comply with the Tribunal's Orders. This application was listed before Senior Member Cremean on 8 June 2007. Mr Dimopoulos appeared in person before the Tribunal. Again, a Greek interpreter was arranged for him. The Senior Member directed that the application be referred to a judicial member for consideration.
2. Thus Mr Dimopoulos first appeared before me on 20 June 2007. Once again he appeared in person but with the benefit of an interpreter arranged by the Tribunal. The Applicant was represented by a solicitor. I explained to Mr Dimopoulos that the matter had been referred to me, as he had not complied with the previous Orders made. I read out the Orders to him. I explained to him the seriousness of his position. I told him that if he continued to disobey the Order of the Tribunal he may well be in contempt of the Tribunal. I told him he may be imprisoned if he deliberately disobeyed the Tribunal's Orders. Mr Dimopoulos did not appear to me to accept the legitimacy of the Orders. He wanted to argue about whether there had been any water leak from his property. I explained to him as clearly as I could, and with the assistance of the interpreter, his obligation to obey the Orders made. I am in no doubt that he understood what I said.
3. I was concerned that Mr Dimopoulos appeared to have had no legal advice as to his obligation to obey the Orders which the Tribunal had previously made. I asked the interpreter to take him to the Tribunal duty solicitor after the hearing before me had finished, so that the precise terms of the Orders and his obligation to obey it could be again explained to him, and legal representation could be arranged for the next hearing at which I would need to consider whether Mr Dimopoulos was in contempt of the Tribunal's Orders.
4. The Orders which I made on that day included the following Order:-

"That a final hearing be held on 26 July 2007 for the purpose of determining whether or not Kosmos Dimopoulos is in contempt of the Tribunal for failing to comply with the orders of Senior Member Cremean made 24 November 2006 and if so whether he should be imprisoned pursuant to section 137 of the VCAT Act."

1. I also made other Orders providing for the filing by the Applicant of a draft charge, an affidavit setting out the facts relied on to show contempt, and a date for the filing by Mr Dimopoulos of any affidavit material on which he sought to rely.
2. Lastly, I extended the time for Mr Dimopoulos to comply with each of the Orders of Senior Member Cremean to 12 July 2007. I explained to Mr Dimopoulos that I had done so to give him an opportunity to comply with the Orders so as to avoid further jeopardy in relation to the contempt charge.
3. At the hearing before me on 26 July 2007, Mr Dimopoulos was represented by counsel. To my dismay, he had still made no attempt to comply with the Orders made. Heidi Bradford had filed a draft charge and sworn an affidavit detailing the continuing leaking of water from her ceiling, and attesting that Mr Dimopoulos had not paid the money outstanding under the Order. Mr Dimopoulos did not file any material.

1. Contempt is a serious offence and proceedings in which it is alleged should be conducted as far as possible in a manner consistent with that adopted in relation to criminal conduct generally. It is vital to give a person clear notice of the contempt with which they are charged and a proper opportunity to respond to the allegation made.
2. In this case, the application that the Respondent be dealt with for contempt was issued by the Applicant in the form of Form 2 of the Tribunal Rules. At the Directions Hearing on 20 June 2007, I was concerned to ensure that Mr Dimopoulos clearly understood what behaviour was relied apon by the Applicant as contempt, and that he have the opportunity to place before the Tribunal any explanation as to why the Orders had not been complied with.
3. This is the reason why I ordered that, by 20 July 2007, the Applicant file and serve a draft charge and an affidavit setting out the facts relied on in the contempt application and particularly the extent to which the Orders made on 24 November 2006 had been complied with. I further ordered that any affidavits on which the Respondent seeks to rely be filed and served by 24 July 2007.
4. In compliance with my Orders, the Applicant filed a draft charge and affidavit of Heidi Bradford sworn 19 July 2007. In that affidavit she set out the Orders of Senior Member Cremean and deposed to having observed the continuing flow of water into her bathroom from the Respondent's flat above. She also deposed that she had not been paid the sum of $1000.00 ordered to be paid.
5. At the commencement of the hearing before me on 26 July 2007, counsel for the Applicant referred to these documents filed by the Applicant and confirmed the failure of Mr Dimopoulos to comply with the Orders.

1. It is very important that Orders made by this Tribunal are obeyed. Parties spend much time and often much money seeking justice from the Tribunal. In Ms Bradford's case, she has waited from August to November of 2006 for these Orders to be made, and now has been waiting since 24 November of 2006 for them to be complied with. This Tribunal's obligations, set out in section 98 of the VCAT Act, to conduct itself with as little formality and technicality as possible, do not detract from the Tribunal's responsibility to ensure compliance with its Orders. No one should be in any doubt that this Tribunal's Orders must be obeyed and its deliberations accorded respect. It is for this reason that this Tribunal has been given the power to punish for contempt. This power must be used in appropriate occasions to preserve the authority and standing of the Tribunal.
2. Section 137 of the VCAT Act empowers me to find a person guilty of contempt in the event of behaviour directed at the Tribunal described in sub-paragraphs (a) to (e). Those sub-paragraphs do not apply in this case.
3. Sub-paragraph (f) of that section provides that a person is guilty of contempt if he or she does any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court. This paragraph applies in this case.
4. Sub-paragraph (f) gives to this Tribunal very wide powers. The pre-conditions for the exercise of the contempt power have been set out conveniently by Gillard J in Advan v Dean Gleeson Motor Sales Pty Ltd (2003) VSC 210 as follows:-

1. That an Order has been made by the Tribunal. 2. That the terms of the Order are clear, unambiguous and capable of compliance.

1. That the Order was served on the contemner, or service excused or dispensed with.

1. That the contemner has knowledge of the terms of the Order. 2. That the contemner has breached the terms of the Order. 3. That the act constituting the breach was voluntary.
2. Each of these elements must be proved beyond reasonable doubt, and strict compliance with service is required, given the seriousness of the allegation of contempt made.
3. It has often been said that failure to comply with an Order is not contempt if the non-compliance is inadvertent, or unavoidable, or the result of mistake. A wilful failure to comply must be proved, in order to establish an act of contempt. My task is to determine whether or not Mr Dimopoulos' failure to comply with the Tribunal's Orders is wilful. In Moreland City Council v Stranaghan (2002) VCAT 190, this Tribunal has interpreted the word "wilful" to mean deliberate - in the sense that the person charged has had the means to comply with an Order, but deliberately chose not to do so.
4. It was also observed in that case that the contempt power should not be used unless there was no other effective way of enforcing the Tribunal's Order. It is important to state that the contempt power should not be used simply as a debt recovery procedure. If a person genuinely cannot comply with an Order, for financial or other reasons, or has not been given a realistic opportunity of complying, when all of his circumstances are taken into account, then the contempt procedure is not appropriate.
5. And it is important to restate that the contemner does not bear the burden of proving any of these matters. In this case, it is for the Applicant to prove beyond a reasonable doubt that that Mr Dimopoulos' failure to comply with each of the three Orders of 24 November 2006 was deliberate, and not as a result of inability to comply, or lack of comprehension, or lack of means to be able to satisfy the Orders made.
6. Counsel for the Respondent submitted that in this case:-

1. the terms of Orders 1 and 2 were not clear, were ambiguous and incapable of compliance. 2. That the Order was not properly served on the Respondent and that there had been non-compliance with the appropriate rules relating to the recording of judgment.

1. That the Respondent did not speak English and therefore did not know the precise term of the Orders made against him.

ARE THE ORDERS AMBIGUOUS, OR NOT CAPABLE OF BEING COMPLIED WITH?

"The Respondent is restrained from allow water flow ("the water flow") from Unit 10, 20 Loch Avenue East St Kilda ("the Respondent's apartment) to Unit 2, 20 Loch Avenue East St Kilda and/or into the cavity wall of the building at 20 Loch Avenue East St Kilda and must forthwith stop such water flow."

1. It was submitted that there was no clear statement in this Order as to what water flow was being referred to or how it could be stopped. It was further submitted that the misdescription of the Applicant's unit as Unit 2, not Unit 1, made the Order confusing and incapable of compliance.
2. In my view, it is clear that the obligation of the Respondent under the first Order is to stop water flowing from his property to the Applicant's property. It is unfortunate that the Order originally misdescribed the Applicant's flat as Unit 2, not Unit 1. The error was, however, swiftly corrected.
3. The terminology of the Order made follows the terminology in the Water Act 1989. Section 16 of that Act refers to the flow of water from one property to another and provides a remedy for unreasonable flow of water. I have no doubt that the Applicant at all times realised that the Order related to water flowing from his property to the Applicant's unit which was the one immediately below.
4. Mr Dimopoulos' counsel argued that it was not clear from the Order how Mr Dimopoulos could prevent the water flow. In my view, the manner of preventing the water flow does not need to be specified in the Order for the Order to be capable of compliance. It is up to Mr Dimopoulos to take whatever expert advice he needs to identify the source of the leak and to stop it.
5. Similarly, in my view there is no ambiguity as to the terms of Order 2. The Respondent was ordered to repair the pipes in his apartment which have caused the water flow. There is no evidence that he has done so, or even attempted to have done so.
6. It may have been a different situation if Mr Dimopoulos could demonstrate that he had done his best to comply with the Order, but despite what he did the leak could not be stopped and his attempts at repair were unsuccessful. However, I am firmly of the view that the Respondent has not made any proper attempt to obtain professional advice or assistance to find the source of the leak or to repair his pipes. I have formed that view from hearing Mr Dimopoulos give evidence in the witness box, and from the absence of any evidence of any attempt at repair in this case.
7. In my view, each of the Orders made by Senior Member Cremean were clear, unambiguous and capable of compliance. The misdescription of the Applicant's unit was swiftly rectified. The Respondent had been in attendance at the hearing. He well knew that the complaint was made in relation to Unit 1, not Unit 2. He well knew that he had been ordered to stop water flowing from his unit into Ms Bradford's unit and to repair his water pipes.

1. Counsel for the Respondent submitted that, because I am given the power under section 137(f) to deal with any act that would, if the Tribunal were the Supreme Court, constitute a contempt of that Court, this means that all of the procedural steps relied on in this contempt hearing must follow the Supreme Court Rules. In particular, he directed me to Order 66(10) of the Supreme Court Rules, that being an Order providing for personal service of a judgment on a person to be bound by the judgment, and providing for an endorsement on the judgment, notifying the person so bound of the consequences of failure to comply with the Order, including the possible sanction of imprisonment.
2. In my view, the power given in sub-section (f) does not require the application to the contempt proceeding of the Rules of the Supreme Court. Were this so, those Rules would need to apply to all Orders made by this Tribunal, for all of the Tribunal's Orders potentially may attract the sanctions provided in section 137. This is a nonsensical result and plainly inconsistent with the power given to the Rules Committee under section 151 of the VCAT Act to regulate the Tribunal's own rules of practice and procedure, and the power given under section 137(3) to the Tribunal to adopt any procedure the Tribunal thinks fit on the hearing of a contempt charge.
3. Even if I am wrong, I am able to be satisfied that the Respondent knows of the exact terms of the Orders made and his obligation to comply with them. I read them out to him myself at the hearing on 20 June of this year. I told him that he may be imprisoned if he failed to comply with the Orders.
4. Further, the Orders of Senior Member Cremean, sent to him by the Registry, included Reasons for Decision which clearly spell out the Orders, the basis for the Orders and the possible consequences of non-compliance. I know that the Respondent received those Orders of Senior Member Cremean and the Reasons attached, as he produced them whilst giving evidence before me on 26 July 2007.

1. The Respondent is Greek. As I have recounted, he has appeared by himself at previous hearings regarding this matter. On every occasion he has had a Greek interpreter. It would be an injustice for a man to be convicted of contempt of court if the non-compliance had come about because he did not understand the terms of the Orders made.
2. Mr Dimopoulos gave evidence before me. In giving his evidence he was assisted by an interpreter. He initially told me that he did not know what Orders had been made by Senior Member Cremean. He said he had not received them. He did not remember any Orders being made. He said he had never seen the Reasons given by the Senior Member. Later, in giving his evidence, he produced the Order and the Reasons and acknowledged he had received them. He said he did not understand what they were, as he did not read English. Yet he agreed that his adult son who lived with him, had been born in Australia and understood English well. He said he did not want to bother his son with translating the correspondence as he had psychological problems.
3. He said he had not understood any of the correspondence from the Tribunal. Yet he had appeared at all the previous directions hearings and hearings. So he must have found out in some way what the correspondence from the Tribunal was about. He could not explain how he knew the dates on which to attend for Tribunal hearings. He could not explain how he had known which documents to bring to the hearing before me.
4. He said none of the interpreters engaged by the Tribunal had properly explained the proceedings or Orders to him. He said he had seen the Applicant put documents in his letterbox. He thought the letters from the Tribunal were placed there by Ms Bradford, not the Tribunal.
5. He said he could not understand what the issue was with water in his unit. He said he had not seen any water. He did not know what a cavity wall was. He did not understand which pipes the Order referred to. He said he thought it might be to do with his washing machine. He said he had fixed up the water - and then revealed that he had renovated his bathroom years before. He claimed to have paid a plumber to renovate his bathroom, but could not provide the identity of the plumber or an invoice. He would not say when this renovation had taken place. He said he had completed the renovation himself as that plumber had left it unfinished. He said a plumber called Nick Keilos had looked at his apartment and said no works needed to be done. He was unable to produce that plumber to give evidence. He did not say when this inspection had occurred. He provided no explanation at all as to why he had not paid the outstanding money due under the Order.
6. Even making great allowance for his language difficulties, I formed the strong view that Mr Dimopoulos' evidence was completely unreliable. His protestations that he did not know anything about the Orders, or what to do to comply with them, flew in the face of what I had said to him when he was before me on 20 June 2007. I find as a fact that he did receive each of the Orders made by the Tribunal and was aware of what each Order obliged him to do. He has lived in Australia for 33 years. He has run a furrier business. He engaged an accountant for that business. He has had the benefit of interpreters at each of the hearings before the Tribunal.
7. Overall, in giving his evidence, I found Mr Dimopoulos to be evasive and argumentative. He constantly interrupted. He did not appear to take the proceedings seriously. He laughed in scorn at times. In my view his evidence was not to be believed.
8. It is clear to me, beyond a reasonable doubt, that the Respondent has failed to obey each Order of the Tribunal. It is clear to me, beyond a reasonable doubt, that he has done so deliberately, well knowing the terms of the Orders made and his obligation to comply with them.
9. I therefore find that the Respondent is guilty of contempt of the Tribunal in failing to obey the three Orders made by Senior Member Cremean on 24 November 2006, as amended by him on 29 November 2006, and as extended by me on 20 June 2007.
10. I have adjourned the proceeding to hear from counsel for Mr Dimopoulos Respondent as to penalty.