Campbelltown City Council v Toth

Bankstown City Council v Attallah and Anor [2000] NSWLEC 133; Concrete Constructions Pty Ltd and Anor v Plumbers and Gasfitters Employees' Union and Anor (No 2) (1987) 15 FCR 64; De Gruchy v The Queen (2002) 211 CLR 85; Lizzio and Anor v The Council of the Municipality of Ryde (1983) 155 CLR 211; Mallon and Anor v Allon [1964] 1 QBD 385; CASES CITED: Miller v Quinn and Anor [1977] 2 NSWLR 198; Samuel Peacock v The King (1912) 13 CLR 619; Seaward v Paterson [1897] 1 Ch 545; Walsh v Tattersall (1996) 188 CLR 77; Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING: 11/02/2005 EX TEMPORE JUDGMENT DATE : 02/14/2005

APPLICANT A M Pickles (Barrister) SOLICITORS Abbott Tout

RESPONDENT T To (Barrister) SOLICITORS Hancocks Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Cowdroy J: By statement of charge dated 25 November 2004 the prosecutor (the applicant) charges the alleged contemnor (the respondent) that he disobeyed Order 1 made by the Court on 14 October 2004 ("the Order") in that he continued to use, suffer, or permit to be used premises known as 1/25 Blaxland Road, Campbelltown ("the premises") for the purposes of a sex shop, without consent of the applicant having been obtained as required by the Environmental Planning & Assessment Act 1979 ("the EP&A Act"). The particulars allege that on 28 October 2004 and on 8 November 2004 the premises were used for the proscribed purpose. The respondent has pleaded not guilty to the charge.

2 The Order provides: The Respondent by himself, his servants and agents be restrained, from 21 October 2004, from using suffering or permitting to be used 1/25 Blaxland Road, Campbelltown for the purposes of a sex shop without the consent of the Applicant having been obtained beforehand as required by the Environmental Planning and Assessment Act 1979. The applicant's evidence 3 The affidavit of Edren Ravino, a development officer employed by the Campbelltown City Council ("the Council"), sworn 24 November 2004 refers to an inspection of the premises which he made on 25 October 2004. He observed that there was a sign of a temporary nature placed on the door to the premises. The sign was in handwriting and stated: "We are open for pickups for Internet and Party Plans. All other enquiries apply within." He entered the premises and observed therein shelves displaying a large number of restricted pornographic DVDs, videos, magazines, sex toys and clothing. In the course of his inspection he spoke to a female person standing behind a counter within the premises and left a message requesting that the respondent be advised of the inspection. 4 Mr Ravino swore a second affidavit on 14 December 2004. This affidavit relates to an inspection carried out at the premises on 14 November 2004. On that date he again observed that handwritten signs were located on each side of the door to the premises. Such signs provided the same information as the sign which he had observed on his previous visit. Within the premises he saw DVDs, videos and other adult paraphernalia displayed in glass cabinets and on shelves. Behind the entry to the premises was a glass cabinet or counter on top of which was a cash register and EFTPOS machine. He spoke to a female person in the premises and requested that she inform the respondent that he had been present for the purpose of an inspection. That inspection took place at approximately 2.10 pm and concluded at 2.15 pm on that day. 5 Upon his return to the Council premises, Mr Ravino found a message from the respondent requesting Mr Ravino to contact him. A conversation took place at about 2.45 pm between Mr Ravino and the respondent. In the conversation the respondent inquired the purpose of Mr Ravino's inspection that afternoon to which Mr Ravino responded: "I inspected the premises to confirm that there had been no changes since the last inspection". The respondent replied: "OK, great". 6 Mark Miller, a private investigator, swore an affidavit on 23 November 2004 relating to an inspection which took place on 8 November 2004. He observed a sign placed on the door in the same terms as had appeared when Mr Ravino made his inspections. He entered the premises about 4.30 pm and saw on the right hand wall, which is approximately eight to ten metres long, DVDs of a pornographic nature displayed on the shelves. He recalled that there were about a hundred DVDs so displayed. On the rear wall he recalled seeing videos with pornographic names and images displayed on the shelves. On the left wall he observed various types of dildos and sex toys and estimated that over a hundred were displayed in this manner. He saw there were racks and shelves located on the floor of the premises displaying all types of sex toys, videos, clothes and DVDs. He noticed there were other people inside the premises inspecting the articles so displayed. He went to the counter and purchased an article from a Caucasian female and left the premises at about 4.30 pm.

7 David Patrick Day is an environmental compliance officer employed by the Council. Mr Day swore an affidavit on 17 January 2005 which relates to a visit which he made to the premises on 14 January 2005. He recalls seeing a sign outside the premises apparently displaying similar words to those observed by Mr Ravino and by Mr Miller. He spoke to a female behind the counter at about 12.55 pm on 14 January 2005 and asked whether the respondent was available. The person replied: "No but he should be back shortly". He then left a message for the respondent advising of his inspection. The person behind the counter said: "we are only doing party plan pick ups and internet orders". Attached are photographs which Mr Day took on his visit. He also noticed that goods were on display at the time of his visit, namely DVDs, videos and other novelties located upon shelving and that there was a cash register on the counter near the doorway. 8 Mr Scott Phillips, a town planner employed by the Council, has provided the Court with three affidavits. The first affidavit of 14 October 2004 describes the history of premises at 55 Queen Street, Campbelltown, which the respondent had occupied prior to his lease of the premises. An appeal was brought in this Court by the respondent against Council's refusal of a development application for a "restricted premises" use for the Queen Street premises. The Commissioner upheld the Council's decision and on 22 June 2004 in proceedings 40476/03 this Court heard an appeal under s 56A of the Land and Environment Court Act 1979 against the Commissioner's decision. That appeal was unsuccessful. 9 On 21 June 2004 the Council received development application number E41/2004 for use of the premises as "restricted premises" ("the first D/A"). "Restricted premises" are defined in the Campbelltown Sex Industry Development Control Plan 2003 as places where, inter alia, articles, materials, compounds, preparations, devices or other things that are primarily concerned with or used or intended to be used in connection with sexual behaviour are sold or otherwise rendered accessible or available to the public. The premises are zoned 4(b) Industrial B zone under the Campbelltown (Urban Area) Local Environmental Plan 2002 ("the Campbelltown LEP"). Within that zone shops are prohibited pursuant to cl 13(5) of such plan. 10 Annexed to Mr Phillips' affidavit is his file note dated 27 September 2004. It records the clear instruction provided to the respondent that he should cease trading at the premises since no permission was held for that purpose. Also annexed to the affidavit is a copy of the lease pursuant to which the respondent leased the premises. 11 Mr Phillips' second affidavit sworn on 14 December 2004 refers to a conversation that took place with the respondent on 1 November 2004. Mr Phillips deposes that he received an inquiry from the respondent seeking to ascertain whether a certificate pursuant to s 65 of the EP&A Act had been issued by the Minister to the Council in respect of proposed amendment 5 to the Campbelltown LEP. Amendment 5 to the Campbelltown LEP, if gazetted, would permit restricted premises in the 4(b) Industrial B zone thereby allowing such use at the premises. In the course of the conversation Mr Phillips said to the respondent:- Are you continuing to trade at the premises by way of inviting customers to pick up telephone and internet orders at the shop? The respondent is alleged to have said:- Yes, I am continuing to trade in this manner as it is necessary to fulfil previous orders. It is like a warehouse. After a further conversation Mr Phillips advised the respondent that he was required to cease trading immediately.

12 Mr Phillips' third affidavit of 20 December 2004 refers to a conversation which took place on 14 December 2004 with the respondent. In that conversation the respondent again inquired whether amendment 5 to the Campbelltown LEP had been gazetted. He was informed that it had been gazetted. He also inquired whether any progress was being made in the assessment of a development application made by him for restricted premises. Mr Phillips advised the respondent that the development application was being considered.

13 The respondent has provided the Court with two affidavits. The first affidavit was sworn on 31 January 2005. In that affidavit he refers to the lease of the premises and to the application he made in June 2004 to the applicant seeking approval to operate half of the premises as an adult bookshop or restricted premises and the other half as a workshop for his other activity, namely a motor sport business known as Everhot Motorsport. The respondent deposes that he commenced trading from the premises as Adult Zone on 22 September 2004 and that, following Council inspections, he was advised against trading. The respondent also deposed to having numerous telephone calls to Mr Scott Phillips of the Council in which he was informed that the approval of the Campbelltown LEP, presumably amendment 5, was imminent.

14 The respondent states that he had operated a number of businesses in the past ten years and was anxious not to break the law. He also states that he has been in a relationship with a lady named Kirsten Biggs for about ten years. Early in October 2004 the respondent says he informed Ms Biggs that the Council was seeking to close down his bookshop in Campbelltown and that Ms Biggs suggested that she should buy the business to allow the respondent more time to devote his efforts to his race car. The respondent deposed that in addition to his race car business he had an interest in promoting an energy drink known as Private Energy. He said that he decided to spend more time on those businesses and on or about 10 October 2004 resolved to sell the business known as Adult Zone to Ms Biggs for $5000 and to grant her a sublease of the premises. The rent was agreed at $1500 per month. The respondent deposed that on 13 October 2004 he entered into a contract for the sale of the business and on 16 October 2004 executed a sublease of the premises to Ms Biggs. Documents referring to the sale of the business, a receipt for the purchase monies, a certificate of registration of the business and copies of receipts for rent are attached to the affidavit.

15 In his second affidavit sworn on 10 February 2005 the respondent challenges the recollection of Mr Phillips in relation to the conversation set out in Mr Phillips' affidavit of 14 December 2004. The respondent says that he did not say the words used by Mr Phillips but rather words to the following effect: "We supply goods to people for party plans that we do and couriers as well as people picking up orders made off the internet". The reference to party plans is a business which the respondent operates under the name of "Sassy Nights". The respondent says the reference to internet orders is a reference to orders placed to his business operated through a website www.sextoys.net.au. The respondent says that those businesses have nothing to do with Adult Zone. 16 The respondent deposed that he occupied part of the premises as a warehouse and workshop from which he conducts Everhot Motorsport. He says he attends the warehouse or workshop irregularly, perhaps once every second day, and does not make any sales from the warehouse. Attached to his second affidavit is a sketch plan of the area which the respondent claimed was occupied by the shop and the other by the warehouse workshop. The respondent has also attached a copy of a second development application which was made by him to the Council dated 8 November 2004 seeking to use part of the premises for a change of use described as change of use/industrial unit from tyre centre to warehouse ("the second D/A"). The offence 17 The Court is required to determine whether the respondent has been engaged in conduct contrary to the court order. The applicant submits that the sale and assignment of the business carried on at the premises is a sham and should be ignored by the Court. Even if it is not a sham, the prosecutor submits that the respondent has "suffered or permitted" a breach of the order and is accordingly guilty of contempt of court. 18 The Court observes that it has power to punish for contempt. Part 6 r 1 of the Land and Environment Court Rules 1996 adopts Pt 55 of the Supreme Court Rules 1970. Part 55 of the Supreme Court Rules 1970 makes provision for proceedings to be instituted for contempt of Court. The Supreme Court Rules have been made pursuant to s 123 of the Supreme Court Act 1970.

19 The respondent's claim that he is no longer involved in the activities at the premises requires careful scrutiny. 20 The documents produced by the respondent entitled "Contract for the Sale of Business" purports to transfer the business to Kirsten Biggs. The contract is dated 13 October 2004. The consideration of $5000 is expressed to be for goodwill. The document is handwritten and in cross-examination the respondent conceded that he had no professional advice in relation to the sale. The receipt was similarly handwritten. 21 The certificate of registration of business name Adult Zone produced to the Court establishes that such business name was registered in the name of Kirsten Biggs. The principal place of business is described as unit 1/25 Blaxland Road, Campbelltown. The date of registration does not appear on the certificate of registration of business name. It states that unless cancelled, registration will remain in force until 25 October 2007. 22 The purported sublease is a document which has clearly been prepared by a person without legal training. It describes the lease term as six months with an option to renew, provides for payments of $1500 a month and says that outgoings are to be paid by the lessee. The lease agreement came into effect, or "affect" as it is described, on 16 October 2004. It does not state the purpose or the use of the premises for which the lease is made. 23 The lease of the premises is stated to be for a period of three years from 28 June 2004. The permitted use as described in the lease is adult bookshop. Clause 16 states: … this lease is conditional upon the Lessee obtaining Development Consent from Campbelltown City Council for the use of the premises as an adult book shop and prescribes a timetable for the obtaining of that consent. 24 Clause 10.3 of the lease relates to subleases. It provides that a request for the landlord's consent to transfer the lease must be made in writing. There is no evidence that any request was made of the landlord to approve a use other than an adult bookshop and there is no evidence of any approval for that use in respect of the timeframe referred to in the statement of charge. Additionally there is no evidence of any consent being issued in writing to the assignment of the lease. 25 In response to the latter proposition the respondent claims to have obtained the oral consent of the landlord to the transfer to Ms Biggs. The landlord did not give evidence of this fact nor is there evidence that the landlord ever approved a change of use. Further Ms Biggs was not called to give evidence.

26 Telephone records were tendered which suggest that the purported purchaser, Ms Biggs, was involved in the business at an earlier time than the date of the purported sale. Whether this has resulted from the compilation of the telephone records is unclear and the Court can make no finding. However, all of the telephone records which purport to be for the period from 22 September 2004, namely a date which precedes the purported sale, to 20 January 2005 are recorded in the name of Ms Biggs as the subscriber. The telephone records do not establish that Ms Biggs became the proprietor after a purported sale on 13 October 2004. 27 There are some further puzzling aspects of the respondent's evidence. The plans which accompanied the second D/A were tendered. Those plans related to the very part of the premises which the respondent says he subleased to Ms Biggs. When this matter was drawn to his attention, the respondent said that the plans, which he claimed not to have seen before the hearing, were wrong. In his affidavit sworn 10 February 2005 the respondent says that in fact the area intended to be occupied was the other part of the unit. The second D/A describes the floor area of 178.06 square metres. In relation to this the respondent said: I note the floor area stated at item 10; this relates to the area of the warehouse/workshop only.

28 If the respondent's summation is correct it follows that the plans which are included at p 4 of the Statement of Environmental Effects are also wrong. The proposed development is clearly shown in this document as occupying most of the space currently occupied by the premises, that is the premises allegedly occupied by Ms Biggs. Additionally the Statement of Environmental Effects states that it was prepared for "Adult Zone" not for Mr Toth. The respondent says that that is also a mistake. 29 As a further matter the town planner retained by the respondent, namely Mr Spencer Buchanan of Southwest Planning, wrote to the applicant on 10 February 2005 stating as follows:- I refer to the above application and advise that our client no longer wishes to proceed with this application and we request that the application be withdrawn. The respondent says that that is also a mistake and that he had never issued such instructions. 30 The respondent submits that the prosecutor has not proven the charge and additionally that the charge against him is duplicitous.

31 The applicant is required to establish its case on the criminal standard of proof. For this proposition the respondent has referred the Court to the authority of De Gruchy v The Queen (2002) 211 CLR 85. In that decision the observations of Kirby J make it plain that the jury must be warned that in primary facts from which an inference of guilt is to be drawn the jury must satisfy itself beyond reasonable doubt. His Honour said (at 97): The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof.

32 The respondent also relies upon Samuel Peacock v The King (1912) 13 CLR 619. At 629 Griffith CJ, dealing with a case of a criminal nature, observed: The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypotheses with the circumstance being in the abstract insufficient, unless they exclude every other supposition, it is essential to inquire with the most scrupulous attention what other hypotheses there may be which may agree wholly or partially with the facts in evidence.

33 Each of the above cases were criminal and not civil. Whilst proceedings for contempt are civil in nature there is no question, as has been decided by the High Court of Australia, that the criminal standard of proof applies: see Witham v Holloway (1995) 183 CLR 525. Ultimately the Court is required to determine whether the facts alleged by the applicant prove that the respondent has engaged in the prohibited conduct. 34 The respondent needs to establish his defence on the balance of probabilities. This is at least the case in criminal proceedings (see s 141 Evidence Act 1995) and the same rule should apply in contempt proceedings. 35 As to the respondent's claim that the charge is duplicitous, the respondent says that the charge must either relate to the use or to permitting the use. The applicant should either make an election as to which aspect of the charge it wishes to pursue or failing that the charge should be dismissed for duplicity: see Walsh v Tattersall (1996) 188 CLR 77. The respondent has relied upon the authority of Mallon and Anor v Allon [1964] 1 QBD 385 and also the decision of the Court of Appeal in Miller v Quinn and Anor [1977] 2 NSWLR 198. In each of those cases the Court dismissed the charges which were criminal charges on the ground that there was the potentiality for two charges to be incorporated in the one charge. 36 This submission can be readily rejected. In Concrete Constructions Pty Ltd and Anor v Plumbers and Gasfitters Employees' Union and Anor (No 2) (1987) 15 FCR 64 Wilcox J in the Federal Court of Australia addressed the same submission. Having observed that it is an established principle in criminal law that a single charge alleging the commission of a multiplicity of offences is defective, his Honour said (at 74): But a proceeding for civil contempt is not a criminal prosecution, notwithstanding some similarities in the standard of proof required and in the punishment which may be awarded. The principle of duplicitous pleading has no place in the law of contempt. As Fox J said in Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 398: "The fact is, however, that what is charged is contempt of court in not complying with the relevant injunctions. The charges operate to indicate the injunction (or injunctions) relied upon and to give brief particulars. The analogy between the charge required by the rules of court and a criminal charge is incomplete, because the person to whom an injunction is directed knows, with some precision, and specificity, what he is commanded not to do."

37 The observations of Wilcox J made in 1987 are reflected in the observations of McHugh J in Witham v Holloway wherein his Honour confirmed that contempt proceedings remain civil proceedings although certain aspects of the criminal law, particularly in relation to the standard of proof, impact thereon. It follows that the respondent's submissions concerning duplicity are misconceived.

38 The Court has been referred by the respondent to other authorities such as Lizzio and Anor v The Council of the Municipality of Ryde (1983) 155 CLR 211. In that decision the Court determined that a use which was lawful could be carried on despite other parts of the premises being restrained. It is difficult to see how the facts in that case have any application, since in the present case the applicant alleges that the respondent was involved in activities conducted on the restrained part of the premises. 39 The Court has also been referred to Bankstown City Council v Attallah and Anor [2000] NSWLEC 133. In that decision the Court upheld a charge of contempt when the activities conducted on the premises were found to be essentially remaining under the control of the respondent. 40 The Court was also referred to Seaward v Paterson [1897] 1 Ch 545. In that case the Court upheld a finding of contempt against respondents who knowingly permitted conduct to take place on the premises despite the existence of an injunction restraining that conduct. 41 In this instance the Court is not satisfied that a sale of the business has taken place and that a transfer of the sublease has occurred. The inconsistencies in the evidence of the respondent concerning the plans for the proposed use of the premises are unsatisfactory. Conversations with persons on the premises in October and November 2004 establish that the respondent continued to have some active involvement in the business which, based upon Council's evidence, continued to trade. In no conversation with any Council officer did the respondent suggest that he was no longer involved in the business. These facts establish to the Court's satisfaction that his involvement in the business continued. The Court is not satisfied that there was a bona fide sale. The purported sale and the purported assignment of the sublease are ineffectual. The Court is satisfied that the transaction was contrived to attempt to overcome the effect of the Order and that the respondent continued to operate the business. 42 Even if the Court were wrong in such finding, there is no question that the respondent has actively permitted the premises to be used for the purposes proscribed. The respondent acknowledges in his affidavit that he had informed Ms Biggs of the Order yet he permitted the business to continue at the premises. The evidence of the Council officers shows that the premises were being used for the purpose of retailing on the dates charged and the sign exhibited outside does not exclude the possibility that the other inquiries made within the premises would result in a sale.

43 The Court is satisfied that the respondent has acted contrary to the Order and accordingly the charge of contempt is proved.

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