Burwood Council v Wu Long Dai (No 2)

Legislation Cited: Crimes (Administration of Sentences) Act 1999, s 77
Environmental Planning and Assessment Act 1979, ss 9.37(1), 9.46(2)(b)
Land and Environment Court Rules 2007, r 6.3
Supreme Court Rules 1970, Pt 55 rr 3, 6, 7
Uniform Civil Procedure Rules 2005, rr 40.7(1)(b), 7.36(1)

Cases Cited: Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union [2009] FCA 194; (2009) 259 ALR 306
Burwood Council v Dai [2025] NSWLEC 43
Carew-Reid v Carew Corporation Pty Ltd (unreported, Supreme Court of Western Australia, 23 April 1993)
Castledine v Boronga Pty Ltd [2000] WASC 215
Chiltern District Council v Keane [1985] 1 WLR 619
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) [1987] FCA 117; (1987) 15 FCR 64
Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573
Doyle v The Commonwealth [1958] HCA 46; (1985) 156 CLR 510
Harmsworth v Harmsworth [1987] 1 WLR 1676
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823
Matthews v ASIC [2009] NSWCA 155
McDonnell v Novello [2006] NSWSC 1186
Saywell v Comcare [2026] FCA 137
Skouvakis v Skouvakis [1976] 2 NSWLR 29
Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Category: Procedural rulings

Parties: Burwood Council (Applicant)
Wu Long Dai (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
J Farrell and S Riley-Lewis (Respondent)
Solicitors:
Houston Dearn O’Connor Lawyers (Applicant)
N/A (Respondent)

File Number(s): 2024/63684

Publication restriction: Nil

JUDGMENT

Wu Dai Allegedly Fails to Comply with Court Orders and is Charged with Contempt

1. By notice of motion filed on 20 February 2026 (“contempt motion”), Burwood Council (“the Council”) seeks the following orders:

(a) that the respondent, Wu Long Dai, be found guilty of contempt of this Court by failing to comply with orders 2 to 6 made by Beasley J on 5 May 2025, contained in Burwood Council v Dai [2025] NSWLEC 43 (“5 May 2025 orders”); (b) that Dai be punished by way of a conviction and fine; (c) that the statutory requirement as to when service of a judgment must occur for it to be enforceable by committal, which is contained in r 40.7(1)(b) of the Uniform Civil Procedure Rules 2005 (“UCPR”), be dispensed with; (d) that Dai pay the Council’s costs of the motion on an indemnity basis; and (e) any further orders that the Court sees fit.

2. The statement of charge accompanying the contempt motion particularised the alleged contemptuous conduct as follows:

1. The Respondent is guilty of contempt of the Court in that, from 2 June 2025 he has failed to comply with Orders (3) to (6), and from 30 June 2025 he has failed to comply with Order (2) of the Orders made by the Honourable Justice Beasley on 5 May 2025.

The Making of the 5 May 2025 Orders

3. Dai is the owner of Lot 1 in DP 303218, known as 36 Oxford Street, Burwood (“the land”). The structures present on the land include a two-story heritage listed terrace house, a carport and a shed-like building located at the rear of the property on its north-eastern boundary.

4. The two-story shed, referred to as “the Building” by Beasley J in Burwood Council v Dai, came to the attention of the Council in April 2020, after a compliant was made by a neighbour. The structure is built on an existing pool, with a subfloor level having been created below the original pool deck. The Building rests upon dry stacked bricks, with further support added by wooden floor bearers and joists. A set of stairs connects the ground floor to an upper-level balcony. Roof sheeting and mesh screening enclose the Building.

5. After an inspection of the land, the Council issued Dai with two separate development control orders (“DCO”). The second DCO, the subject of the proceedings before Beasley J, was issued to Dai on 29 March 2023. It required the Building be demolished within 28 days. The order was not complied with.

6. As a consequence, Class 4 civil enforcement proceedings were commenced by the Council by way of a summons on 19 February 2024. Leave was subsequently granted by Beasley J for the Council to amend its summons (Burwood Council v Dai at [34]-[35]). The primary relief sought in the amended summons was a declaration that Dai had failed to comply with the second DCO in breach of s 9.37(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”). By way of relief, the Council sought an order that Dai demolish the Building within 56 days of the orders being made by the Court.

7. The intervening period between the summons being filed and the final hearing before Beasley J was attended by multiple pre-trial directions hearings. Dai failed to appear at most of them. The history of these pre-trial events is helpfully set out in detail by Beasley J in Burwood Council v Dai (at [16]-[33]). It is relied upon without repetition.

8. Dai failed to appear at the hearing on 5 May 2025. The Court determined that the hearing would proceed on an ex parte basis (Burwood Council v Dai at [33]).

9. The Court was ultimately satisfied that Dai had not complied with the second DCO and that s 9.37(1) of the EPAA had been contravened. In reaching this conclusion, Beasley J noted that the Building, due to its construction and its overall condition, represented “a serious threat to the safety of the occupants” (Burwood Council v Dai at [47]-[48]).

10. His Honour also found that the Building was a development for which consent was required but had not been obtained. The Building’s construction and use as a dwelling house therefore breached s 4.2(1) of the EPAA (Burwood Council v Dai at [46]). Consequently, the Court exercised its discretion and made the demolition order sought pursuant to s 9.46(2)(b) of the EPAA.

11. The 5 May 2025 orders stated that:

The Court orders that:

1. Declare that the Respondent has failed to comply with the Development Control Order No.3 given to him by the Applicant on 29 March 2023 (Ref No: 23/14204) which required the Respondent to demolish the building identified in the said Development Control Order located on land legally described as Lot 1 DP 303218 and known as 36 Oxford St, Burwood (Land).

2. Order that within 56 days of the date of these orders, the Respondent is to demolish the said building as required by the said Development Control Order and that he cause the demolition to be carried out by engagement of a qualified demolition contractor in accordance with the following orders.

3. Order that before the expiry of 28 days of the date of Orders being made by the Court the Respondent is to:

a. Engage a suitably qualified person (“the suitably qualified person”) to:

i. demolish the structure that is located at the north-eastern boundary of 36 Oxford Street Burwood, NSW, 2134 (“the land”); and,

ii. remove the roof sheeting and screening that is attached to the north-eastern boundary fence on the land; and,

b. Ensure that all demolished items, debris and removed material being the result of the activities referred to at 3 (a) (i) and (ii) herein are taken from the land and lawfully deposited in an approved waste facility, and that receipts for tipping fees associated with the disposal of all items must be obtained.

4. Order that no later than 1 business day after the engagement of the suitably qualified person takes place, written notice of the engagement inclusive of the contact details of this person must be provided by the Respondent to the Applicant.

5. Order that within two days of the completion of the items referred to at order 3 (b) herein, the Respondent is to provide to the Applicant all receipts for tipping fees for the disposal of demolished items, debris and removed material at an approved waste facility.

6. The Respondent is to pay the Applicant’s costs of these proceedings as agreed or assessed.

7. The parties are granted liberty to apply for the working through of the orders.

8. Without limiting the generality of order 7 above, the parties are granted liberty to apply for the working through of the orders, if the carrying out of the orders would require the Respondent (or other occupants of the property known as 36 Oxford Street, Burwood) to find temporary alternative residential accommodation.

Procedural History of the Contempt Proceedings

12. Since the filing of the contempt motion and the statement of charge, the proceedings have been listed for directions on multiple occasions.

13. During the first directions hearing on 27 February 2026, Dai left the courtroom before orders could be made. In his absence, Robson J adjourned the matter until 27 March 2026, noting that when Dai was next before the Court, he would be assisted by an interpreter given that he does not speak English. However, on that occasion, Dai failed to appear and the matter was stood over.

14. On 10 April 2026 Dai again failed to appear. Among the case management orders made by the Court was an order listing the contempt proceedings for final hearing on 18 and 19 June 2026.

15. A pre-trial mention set down for 27 May 2026 was, however, required to be vacated. This was because the Court was informed by the Council that Dai was in custody at Long Bay Correctional Complex and was scheduled to appear at Burwood Local Court at the same time as the pre-trial mention. An order was subsequently made pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999, which required Dai to appear before the Court on 28 May 2026, and for that attendance to be facilitated by audio visual link.

16. On the rescheduled date, the Court referred Dai to the Registrar under r 7.36(1) of the UCPR for the purpose of obtaining pro bono legal assistance. In the finest traditions of the bar, Jeremy Farrell and Shay Riley-Lewis from Martin Place Chambers subsequently appeared for Dai.

17. Consequent upon Dai obtaining legal representation, the parties appeared before the Court on 16 June 2026 for another pre-trial mention. On that occasion, Dai, through his counsel, entered a not guilty plea and informed the Court that no evidence would be filed by him in answer to the charge. Accordingly, the Court vacated the first day of the two day hearing and made orders for the filing and serving of submissions by Dai prior to the hearing. The Council had filed its submissions earlier in compliance with Court orders.

The Council Applies to Amend Its Notice of Motion and Statement of Charge

18. Rule 6.3 of the Land and Environment Court Rules 2007 provides that Pt 55 of the Supreme Court Rules 1970 (“SCR”) applies to contempt proceedings in Class 4 of this Court’s jurisdiction. It is Pt 55 of the SCR that proscribes the process relevant to the commencement and prosecution of contempt proceedings (see especially Pt 55 r 3 of the SCR).

19. Rule 6 of Pt 55 of the SCR provides that, “where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings”. Rule 7 of Pt 55 of the SCR states that, “a statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.”

20. At the liability hearing the Council moved instanter to amend its notice of motion and statement of charge to rely only on a failure by Dai to comply with order 2 of the 5 May 2025 orders.

21. The amended notice of motion sought the following orders:

1. That the Respondent be found guilty of contempt of the Court for disobeying or otherwise failing to comply with the Orders (2) made by the Honourable Justice Beasley on 5 May 2025.

2. That the Respondent is punished for disobeying or otherwise failing to comply with the Orders (2) made by the Honourable Justice Beasley on 5 May 2025 by way of conviction and fine.

3. That, pursuant to r40.7(5) of the Uniform Civil Procedure Rules 2005, service in the time required by r40.7(1)(b) be dispensed with.

4. That such further or other orders may be made as the Court thinks appropriate, whether pursuant to s 135(1) of the Civil Procedure Act 2005 or otherwise, with respect to the enforcement of the Orders (2) made by the Honourable Justice Beasley on 5 May 2025.

5. That the Respondent pay the Applicant’s costs of and incidental to this application on an indemnity basis.

22. After setting out the 5 May 2025 orders, the amended statement of charge was in these terms:

1. The Respondent is guilty of contempt of the Court in that, from 2 June 2025 he has failed to comply with Orders (3) to (6), and from 30 June 2025 he has failed to comply with Order (2) of the Orders made by the Honourable Justice Beasley on 5 May 2025.

23. No particulars were provided.

24. The late application was, in part, prompted by the receipt of Dai’s written submissions which were served on the Council at approximately 1:30pm on the preceding day. Although responsive to Dai’s submissions, the Council properly conceded that it could not, in any event, press alleged non-compliance with orders 5 and 6 of the 5 May 2025 orders because time for compliance with those orders had not yet arisen.

25. The application to amend was opposed by Dai for two principal reasons:

26. (a) first, the amendments were not minor, sought to correct defects in the statement of charge, and therefore, to allow the changes would cause prejudice to Dai insofar as they would deny him the opportunity of setting aside the notice of motion and statement of charge; and

27. (b) second, the statement of charge was defective because it lacked particulars, and therefore, it was inutile to grant leave to amend it and the motion.

28. Applicable Legal Principles

29. In Skouvakis v Skouvakis [1976] 2 NSWLR 29 Street CJ noted that (at 32), “it has long been recognized that to deprive a subject of his liberty for contempt of court, particularly in summary proceedings, is a serious step, and it is one which should be attended by full regard for form and regularity.” The statement finds its source in a number of decisions of the High Court (Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at [8] and Doyle v The Commonwealth [1958] HCA 46; (1985) 156 CLR 510 at [10]).

30. The relevant principles were summarised in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823 (at [32] per Tamberlin, North and Dowsett JJ):

[32] There is no real contest between the parties in this matter as to the relevant legal principles to be applied in relation to the formulation of a statement of charge. These principles can be summarised as follows:

(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt: Doyle v Commonwealth (1985) 156 CLR 510 at 516; 60 ALR 567 at 571–2 per the court;

(b) parties accused of contempt are entitled to know the gist or substance of the charges against them: Coward v Stapleton (1953) 90 CLR 573 at 579–80 per Williams ACJ, Kitto and Taylor JJ;

(c) where there is a statement of charge, the gist or substance of the allegations must be contained within the statement of charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence: Carew Reid v Carew Corp Pty Ltd (unreported, WASC, Full Court, No 5 of 1993, 23 April 1993) (Carew Reid); Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683; [1987] 3 All ER 816 at 821; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] per Lee and Finn JJ (BHP Steel); Australian Competition and Consumer Commission v Info 4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949 at [9] per Nicholson J;

(d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice: Carew Reid; Castledine v Boronga Pty Ltd [2000] WASC 215;

(e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges;

(f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them: BHP Steel at [31] per Lee and Finn JJ; Australian Building Construction Employees and Builders Labourers Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206–7 per Evatt and Deane JJ (Builders Labourers Federation); and,

(g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party’s case would have been unaltered: Builders Labourers Federation at 206–7 per Evatt and Deane JJ.

31. Their Honours further observed that the “concept of the ‘gist’ of the charge is one that should be approached with some caution in the area of contempt, where precision in formulation is critical” (at [34]).

32. The principles in Inghams were more recently endorsed in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 (at [93]-[95] per Kirk JA).

33. The authorities are replete with statements to the effect that the charge of contempt must be clearly identified so that a respondent is given the opportunity to answer the charge against them. In Matthews v ASIC [2009] NSWCA 155 Tobias JA helpfully set out the salient decisions as follows (at [41]-[46]):

41 In Carew-Reid (at [12]) Nicholson J observed that

“…an alleged contemnor should have clearly particularised in the document particularising the alleged contempt the case against him or her. There are two reasons for that. The first is so that such allegations may be promptly and accurately met and the second is … that such matters will not be lightly raised.”

42 The foregoing principles find their source in a number of decisions of the High Court. Thus in Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579–580 the Court, in a joint judgment, said:

“[I]t is a well-recognised principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him.”

43 Again, in Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510 at 516, the Court, in a joint judgment, observed:

“… a proceeding for committal may result in a very serious interference with the liberty of the subject – indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally, the notice of motion for committal must be served personally on the person sought to be committed, the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge.”

44 The particularity required of a charge of contempt was also emphasised by Sir John Donaldson M.R. in Chiltern District Council v Keane [1985] 1 WLR 619 at 622 where his Lordship said:

“The notice of motion was personally served on Mr Keane, but it only stated the grounds of the application to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court.”

45 The foregoing statement was cited with approval by Nicholls LJ in Harmsworth v Harmsworth [1987] 1 WLR 1676. In the same case, Woolf LJ made the following observation at 1686 which is pertinent to the present case:

“What is not required by the relevant rules is that the notice of the motion should be drafted as though it was an indictment in criminal proceedings. While a respondent is required to be given particulars of what is alleged to be the breach, the particulars do not need to be set out in the same way as separate counts have to be set out in an indictment, nor do they need to give the particulars that you would normally expect to be seen in a count in an indictment. Furthermore, in my view, rules of duplicity and other rules which are designed to ensure the fairness of a trial before a jury, do not apply to proceedings of a different nature which are brought in respect of an alleged contempt.”

46 The primary judge was himself well aware of these principles having observed in McDonnell v Novello [2006] NSWSC 1186 at [26] (omitting citations) that the

“[r]elevant principles in this respect were canvassed by the English Court of Appeal in Harmsworth v Harmsworth . The crucial point is that a statement of charge must state particulars of the alleged contempt in such a way as to show precisely the acts or omissions said to constitute contempt. The person charged must be left in no doubt as to what breach is alleged. … But where … the order precludes a particular course or kind of conduct … it is necessary that the statement of charge identify the precise acts of the alleged contemnor said to constitute the particular course or kind of conduct and thus to entail disobedience to the court’s order.”

34. In Castledine v Boronga Pty Ltd [2000] WASC 215, in a passage approved in Inghams, Anderson J held (at [26]):

[26] In the hearing before me, the plaintiff sought leave to amend the originating summons to cure this basic defect. It is clear, however, that leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial: Carew-Reid & Ors v Carew Corp Pty Ltd (supra) at 15. Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment. This is all the more so where the summons has stood unamended for more than four and a half years, during which very substantial proceedings have taken place, including the taking of accounts. Another reason why there should not be an exercise of discretion in favour of the plaintiff in this case is that from their very inception the proceedings were in contravention of the rule that the motion or summons for contempt should be brought within the proceedings in which the contempt is alleged to have occurred.

35. Castledine was applied in Saywell v Comcare [2026] FCA 137 (at [32] per Anderson J). In that case, the proposed amended statement of charge succumbed to the same evidential deficiencies attending the original charges in that it failed to specify a further charge with sufficient particularity, and moreover, included a new allegation for which no legal basis was provided and no explanation as to how it amounted to a contempt of court (at [33]-[36]). Leave to amend was refused.

36. Finally, the oft-cited (see, for example, the citation in Castledine at [26]) decision of Carew-Reid v Carew Corporation Pty Ltd (unreported, Supreme Court of Western Australia, 23 April 1993, at 15 per Malcolm CJ), held that leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial.

37. The Amendment****s Are Not Allowed

38. Dai relied, in particular, upon [32(d)] in Inghams to argue that the proposed amendments recast the contempt proceedings by purporting to remedy one of two fundamental defects in the statement of charge. The first defect was that the statement of charge impermissibly aggregated the alleged non-compliance with the 5 May 2025 orders into a single charge, rending it uncertain and impossible for Dai to enter a plea in the proceedings. The second, is the absence of particulars in the statement of charge to any of the alleged breaches of the orders. By permitting the amendment, the Court would be depriving Dai of the opportunity of setting aside the charges and resisting the notice of motion, which amounted to real prejudice to him.

39. Two initial observations are made. First, because a proceeding for civil contempt is not a criminal prosecution, notwithstanding similarities in the standard of proof required and in the forms of punishment that may be awarded, the principle of duplicity has no place in the law of contempt (Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) [1987] FCA 117; (1987) 15 FCR 64 at [30] and [31] per Wilcox J, and the authorities cited thereat).

40. This means that the aggregated form of the charges is not, in and of itself, problematic. As the authorities above state, the test is whether the statement of charge provides Dai with due notice and a proper opportunity to answer the charge contained in it.

41. The proposed amendments cure the vice complained of by Dai by eliminating the aggregated form of the charges and any confusion as to which breach of the 5 May 2025 orders he must enter a plea to. This is because only one charge is pressed. On any view, this simplifies the proceedings.

42. Further, I do not consider the absence of particulars to either the statement of charge or the proposed amended statement of charge to be a fatal defect. In both instances the statement of charge gives Dai enough information to be able to meet the allegations contained in it. This is because (Concrete Constructions (No 2) at [28], quoted in Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union [2009] FCA 194; (2009) 254 ALR 306 at [58] per Tracey J):

43. …in relation to omissions it is difficult to do more than to say that no action was taken. But this is sufficient. The respondent then knows the case it has to meet and that it be an answer to that part of the case to so, if it can, either that no positive actions was, under the circumstances, required or that it did take the relevant step.

44. In Chiltern District Council v Keane [1985] 1 WLR 619, Sir John Donaldson MR emphasised the need for statement of charge to be looked at in context. His Honour gave the example of a defendant subject to an injunction to leave the house by no later than a stated time on a particular day. It would be “sufficient”, he opined, to simply state without more that they had failed to comply with the order “because it only permits of one breach, namely failure to leave the house by the time stated” (at 622D endorsed and quoted in Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1682 per Nicholls LJ).

45. Similar statements have been made in more recent cases (Concrete Constructions (No 2) at [28] and [29]; McDonnell v Novello [2006] NSWSC 1186 at [26]; Bovis Lend Lease at [60] per Tracey J; and Matthews at [49]).

46. To reject the amendments on the basis that the statement of charge, either in its current form or as amended, did not provide particulars would be to disregard the sage observation of Woolf LJ in Harmsworth, that while the seriousness of a finding of contempt should always be within the Court’s contemplation, “it should not allow that fact to produce a result which unnecessarily makes a mockery out of justice” (at 1685-1686).

47. Having noted this, however, given that the nature of the amendments can only be described as “substantial”, insofar as five of the six allegations of non-compliance with the 5 May 2025 orders have been abandoned, does this preclude the amendments being granted?

48. In my view it does. I accept that the statement of charge is fundamentally defective. I agree with Dai that the charge is not “distinctly stated” inasmuch as it alleges non-compliance with six orders rolled up into one charge to which Dai must enter a single plea. Dai cannot, in the present form of the charge, plead to the separate components of the charge, namely, the individual orders with which he is said to have breached. In this sense he has not been given a proper opportunity to answer the charge.

49. Even if the component parts of the charge were severable, they are only able to be separated into two distinct sets of unfulfilled orders: first, that he failed to do the things required by orders 3 to 6 of the 5 May 2025 orders by the nominated date; and second, that he failed to comply with order 2 by the stipulated date. This bifurcation does not assist because the asserted failure to comply “with Orders (3) to (6)” similarly does not permit Dai to enter a plea against each of the alleged incompliances.

50. In addition, the statement of charge is uncertain because it is not clear whether the contended contempt is founded upon a failure to do all or some of the matters mandated by the Court in “Orders (3) to (6)” or, for that matter, all six of the 5 May 2025 orders to the extent that as drafted the charge identifies “the contempt” as the failure of Dai “from 2 June 2025…to comply with Orders (3) to (6), and from 30 June 2025 he has failed to comply with Order (2)” of the 5 May 2025 orders (emphasis added). Having regard to the plain text of the statement of charge, the latter construction ought to prevail, however, it is unlikely that this was the intention of the drafter. In the result, the charge is ambiguous.

51. The charge also suffers from several significant evidentiary issues. First, there appears to be no evidence whatsoever before the Court that order 3(a) has not been complied with. More significantly, as counsel for the Council properly conceded, one of the reasons for the mooted amendments is because in relation to orders 5 and 6, “I can’t make those orders out because I concede that the time for compliance for those orders has not yet arisen. …So those two orders are not pressed.” (T1:44-50).

52. The latter concession neatly illustrates the problematic nature of the statement of charge. It is inconceivable that that Dai would plead guilty to those alleged failures to adhere to the 5 May 2025 orders, yet it is entirely conceivable that, in light of the Council’s evidence and the absence of any evidence filed by him, that he might elect to plead guilty to order 2. As framed in the statement of charge, this is presently not possible.

53. To permit amendment of the notice of motion and statement of charge at this late stage of the contempt proceedings would deny Dai of the opportunity of potentially wholly defeating the charge. Dai has made forensic choices based upon the iteration of the statement of charge and notice of motion as filed. He has entered a plea of not guilty and elected to adduce no evidence on the basis of the case pleaded against him (T11:20). If the pleadings are substantially amended, then he has indicated that he will need some time to reconsider his position (T11:21-22). This speaks to the genuine prejudice that will be visited upon Dai if the Council is granted leave to amend.

54. For these reasons, I decline to exercise the Court's discretion to grant leave to the Council to amend its notice of motion and statement of charge and the Council’s application to do so must be dismissed.

55. Costs of the Application

56. Although resisted by the Council, having successfully resisted the Council’s application to amend, Dai should be awarded his costs of doing so. That counsel appearing for Dai have done so in response to the Court’s order for pro bono legal assistance is irrelevant. The terms of the retainer between Dai and his legal representatives is a matter for those individuals and, in due course, a costs assessor, but not the Court.

Orders

57. The formal orders of the Court are therefore as follows:

58. Burwood Council’s application to amend its notice of motion and statement of charge filed on 20 February 2026 is dismissed; and

59. Burwood Council is to pay Wu Dai’s costs of the application.

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