The plaintiff charges the first defendant in these proceedings with contempt of orders that this Court made on 9 December 2020. The contempt charge is framed to allege conduct over a period of 18 months. The contempt charge fails for several reasons. This case illustrates the importance of carefully drafting contempt charges to encompass specific acts, and marshalling compelling evidence against the charged party to the required standard of proof.
These proceedings were heard over two days on 2 and 5 June 2023. Mr T. Maltz of counsel, instructed by Jack Leitner, Australian Lawyers and Advocates appeared for the plaintiff on the contempt application. The first defendant, Ms Janelle Wyatt appeared without legal representation on the contempt application. She had been legally represented at an earlier stage in the proceedings.
The following is a narrative of the relevant history. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy this narrative does not always include reference to versions of the facts that have not been accepted.
[2]
A Lease, Disputed Possession, Court Orders and Alleged Contempt - 2020 to 2023
The plaintiff, Central Coast Animal Care Facility Incorporated ("Central Coast"), is a not-for-profit association incorporated under the Associations Incorporation Act 2009. It operates with the assistance of a small group of staff and volunteers, who rescue and care for dogs and cats. Ms Deanna Walton is the manager of the plaintiff and the president of its managing committee.
The defendants, Janelle Marie Wyatt, and Troy Dean Wyatt are the registered proprietors of a rural property in Mandalong on the Central Coast of New South Wales ("the Mandalong property"). Ms Wyatt is the only active party in these proceedings. The other co-owner, Mr Wyatt, filed a submitting appearance.
Central Coast claims it is the lessee from Ms Wyatt and Mr Wyatt of part of the Mandalong property. Central Coast bases its claim on a written but unregistered memorandum of lease dated 21 October 2020 ("the lease instrument"), which purports to lease to Central Coast part of the Mandalong property used as a dog-kennelling area together with associated outbuildings. The lease instrument has several defects, which are dealt with in more detail later in these reasons. Principal among the defects in the lease instrument is that it fails clearly to define the precise perimeter of the leased area of the Mandalong property. Despite that uncertainty the part of the Mandalong property that is leased is referred to in these reasons as either "the kennelling area" or "the leased area".
Ms Wyatt denies she signed the lease as lessor. She claims that agents of Central Coast forged her signature on the lease instrument. The Court does not have to decide whether Ms Wyatt's signature on the lease instrument was forged in these reasons. But it is nevertheless convenient at times for the Court to describe the relationship between the parties in these reasons, as that of a lessor and lessee. The lease instrument provided that the lease commenced on 17 September 2020 and gave Central Coast two 2-year options to renew.
Disputes broke out between the parties soon after the lease instrument came into existence. Ms Walton says that the lease was signed by the parties on 20 and 21 October 2020 and that Central Coast commenced to pay rent from 1 November 2020 and continued to do so thereafter. Ms Walton says that the leased area comprises an area defined by certain text messages and as a result of Ms Wyatt and Ms Walton walking around the Mandalong property together.
The lease instrument has several unusual features. First, it is not signed by Mr Wyatt. Central Coast says that it is legally possible for a joint owner to lease out their interest in their own property: Cantazariti v White House (1981) 55 FLR 428. Alternatively, Central Coast contends that Ms Wyatt was Mr Wyatt's agent. Debatable though this issue is, it is not fatal to the present application.
But the second and more serious problem is that the leased area is defined qualitatively rather than by a plan. The nature of the property leased is said to be "commercial dog kennels" and the permitted use is "dog kennels and associated purposes". If a leased area is not defined the Court can have regard to extrinsic evidence to define the area: Vasile v Perpetual Trustees WA Limited (1987) 10 BPR 18,091 - 18,092; see also Kymbo Pty Ltd v Paxton Management Pty Ltd [2001] NSWSC 792 in which the Court dealt with poorly drafted lease to deal with the uncertainty created by the parties.
All that can be said is that the leased area is undefined. Whether it followed a fence line for the building housing the dog kennels, or was some wider area is a matter for debate, and debate was likely between these parties. The consent orders described the relevant premises as "the dog kennelling premises in dispute", perhaps the only way to interpret this is that the orders cover any part of the area that either party could assert was part of the leased area. This may be a wide range of possible land areas. To establish its case the plaintiff would have to establish a denial of access to every area of land which either side contended was within the lease.
But Central Coast's case was presented on the basis that the details about the perimeter of the leased area could be worked out later. In one sense that is correct. But in another sense the burden of proof on Central Coast was all the greater. Other issues were raised about the lease instrument: whether it was in registrable form, whether it was properly executed on behalf of Central Coast and whether the second option in the lease was exercised. None of these issues is particularly relevant to the contempt charge which is grounded in the form of orders that Robb J made rather than in the lease itself.
Because of the poor description of the leased premises in the lease itself, it is convenient to profile both the Mandalong property and the leased premises by reference to the diagram which was annexed to an affidavit of Ms Walton sworn on 28 April 2022. That diagram is Annexure A to these reasons. The subject property stands at the corner of Crookes Road and old Maitland Road in Mandalong in the Hunter region of New South Wales. Old Maitland Road runs parallel to the Pacific Motorway near the Mandalong Road overpass. At that point the Pacific Motorway runs approximately north-south and Crookes Road runs West at right angles to the Pacific Motorway and old Maitland Road. Thus, the Mandalong property is situated on the north-western corner of Crookes Road and old Maitland Road. The property is accessible by a dirt road parallel and to the north of Crookes Road and from Crookes Road itself. The dog kennelling area is in what might be described as the north-eastern corner of the Mandalong property, although its boundaries are uncertain.
On 10 and 11 November Ms Wyatt began to send text messages to Ms Walton threatening trespass action against anyone who entered the property. By that time, Ms Donna and some staff of Central Coast had gone into possession and had left plant and equipment on-site.
On 16 November 2020 Ms Walton who together with police attended the property but found the locks had been changed. She claims Central Coast had been locked out of the property ever since and has been suffering irreparable harm due to that exclusion.
This led to Central Coast commencing proceedings by Summons on 3 December 2020 to establish the validity of the lease instrument. The Summons sought declaratory and injunctive relief that the lease instrument was valid and binding. Central Coast also claim in final relief injunctions to permit Central Coast to re-enter and re-occupy the premises.
Central Coast also sought interlocutory relief in the Equity duty list to have access to the leased area pending final hearing. The matter came before Robb J, when both sides were legally represented. Robb J made interlocutory consent orders on 9 December 2020 at the request of the legal representatives of the parties. The relevant part of those consent orders was as follows:
"1. The Court orders by consent, and without admissions, and until further order, and on the usual undertaking as to damages as well as an undertaking by the Plaintiff to continue to pay rent while in occupancy, that:
(a) The First Defendant take steps to give the Plaintiff (and its agents and servants) access to the dog-kennelling premises in dispute, from 9am 12 December 2020, subject to the paragraph 2(b) and subject to the operation of any apprehended violence order referred to in paragraph 2(f) below.
2. The Court notes:
(a) that any present right of the First Defendant to terminate the lease relating to the property at [the address of the Mandalong property is not published] ("Lease"), remains contested;
(b) that the First Defendant reserves any right to purport to terminate the Lease on 7 days' notice;
(c) that the First Defendant has conveyed to the Plaintiff her intention to exercise any such purported right, if the First Defendant considers that her various remaining concerns in relation to the Lease, access to the Property, and the Plaintiff's occupation of the Property, are not addressed ("Concerns");
(d) the agreement of the parties to attempt to investigate, and explore the resolution of, the Concerns (including, without limitation, the possibility of mediation);
(e) the agreement of the parties that (without admission by the Plaintiff as its obligation to do so, and reserving its position), the Plaintiff to repay any amount up to $3,000 which the First Defendant has paid the Plaintiff, by way of repayment of rental payments previously made by the Plaintiff to the First Defendant; and
(f) the First Defendant has applied for an apprehended violence order against Deanna Walton, but the matter has not been heard and no order has been made at this time."
Central Coast's case on the present application is that Ms Wyatt immediately breached order (1)(a) of the consent orders by failing to take steps to give Central Coast and its servants and agents access to the leased area of the Mandalong property. Central Coast says that Ms Wyatt erected large barricades blocking access to the Mandalong property and the leased area and as a result Central Coast has not been in possession of the leased area at any time since 9 December 2020.
After Robb J made the consent orders, on 15 December 2020 an incident occurred at the point where the dirt road on the northern side of the Mandalong property intersects with old Maitland Road. Ms Wyatt took video evidence of part of what occurred in which a motor vehicle parked across the dirt road denied rights of ingress and egress to Central Coast's agents and contractors. The video shows Ms Wyatt was engaged in argument with Central Coast agents and contractors including a Mr John Shears, gave evidence in the proceedings. The video evidence shows Ms Wyatt on friendly terms with the persons who temporarily blocked the dirt road with their car. But the extent that she was directing the conduct of these people is unclear and they moved away after she had conversed with them, allowing the agents and contractors of Central Coast to depart.
The parties are in dispute about the length of this incident. Ms Wyatt said she video recorded it all and it does not show her using expletives when speaking to the servants and agents of Central Coast. But the Court accepts on the balance of probabilities the evidence of Mr Shears that the incident went for about an hour. The Court accepts his evidence that Ms Wyatt used expletives and was unpleasantly aggressive during this interaction.
It took some time for Central Coast to bring a motion for contempt. It filed two motions on 22 October 2021. Central Coast now seeks by its two motions dated 22 October 2021:
1. a declaration that the defendant is in contempt of the Consent Orders dated 9 December 2020 and punishment of such contempt ("the contempt motion"); and
2. leave to amend the Summons filed on 3 December 2020 and on 20 October 2021 ("the amendment motion").
Central Coast should be granted leave to amend its Summons, in accordance with the amendment motion. The amendment motion seeks to add a claim to recover the cost of improvements made to the Mandalong property and for rent paid if Central Coast is ultimately not permitted to occupy the premises. A hearing of the proceedings is some way off and there can be no reasonable objection to allowing this amendment at this stage. The orders made below provide for that amendment.
On 27 October 2021, five days after the contempt motion was filed, Ms Wyatt filed a motion to set aside the consent orders ("the set-aside motion"). Ms Wyatt contended on the set aside motion that she did not understand what her legal representatives had agreed to on her behalf.
On 29 April 2022, a collection of motions (including the contempt motion) was listed before Kunc J. At that hearing Kunc J developed detailed case management orders, prioritising the determination of Ms Wyatt's set-aside motion. On 12 October 2022, Meek J dismissed Ms Wyatt's set aside motion with costs as she did not appear at the hearing to propound her motion to the Court: Central Coast Animal Care Facility Inc v Wyatt [2022] NSWSC 1373 at [8] and [279].
Central Coast's contempt motion seeks the following two orders:
"(1) That the first defendant be committed for contempt of the orders of the court made on 9 December 2020.
(2) That the first defendant be ordered to pay the cost of the plaintiff on an indemnity basis."
Annexure "A" to the contempt motion is a statement of charge which charges Ms Wyatt as follows:
"That from 12 December 2020, the first defendant failed, and continued to fail to provide the plaintiff with access to the dog handling premises located at 34 crooks Road Mount along in contravention of order one of the orders made by Justice Robb at the Supreme Court of New South Wales on 9 December 2020."
As will be seen below there are problems with the form of this charge. But before analysing Central Coast's case on the contempt motion these reasons state the applicable legal principles to be applied on the motion.
[3]
Applicable Legal Principles
The applicable legal principles may be shortly stated. Breaches of the Court's orders fall within the classification of a civil contempt: Witham v Holloway (1995) 183 CLR 525 ("Witham") at 530; Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 ("Toyota Finance") as per Ward CJ in Eq (as her Honour then was) at [115]; In the matter of Jimmy's Recipe Pty Limited [2020] NSWSC 93 ("Jimmy's Recipe") at [67]; Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 ("Mudginberri") at 113; [1986] HCA 46; and Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 ("Bellerive") at [38]; NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 ("NHB Enterprises") at [192].
Where contempt is said to consist of failure to comply with a court order, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: see Mahaffy v Mahaffy (2018) 97 NSWLR 119; [2018] NSWCA 42 ("Mahaffy") at [92]; Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [127]; Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 2) [2018] NSWSC 1776 at [79]-[80]; Furlong v Wise & Young [2019] NSWSC 1718 ("Furlong") at [98]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 ("Markisic") at [64]; and Mudginberri at 113.
A party who has committed civil contempt by breach of a court order may be exposed to a fine or imprisonment if the charges are established: Supreme Court Rules 1970, Part 55 r 13(1).
The elements that need to be established in an application for civil contempt for breach of a court order are conveniently set out in Bellerive at [38] and Eshow v Zaia [2020] NSWCA 10 ("Eshow") at [17]-[18]. The party alleging contempt must establish that:
1. an order was made by a court;
2. the order was sufficiently clear such that one can be sure that the order was not complied with;
3. the alleged contemnor had knowledge of the terms of the order and, if required by the court rules, the order was served on the alleged contemnor or service was for some reason dispensed with; and
4. the alleged contemnor took a deliberate step which, even if not intended to, breached the order.
There has been recent judicial discussion about the standard of proof applicable in establishing civil contempt. Based on a decision of White J (as his Honour then was) in Eshow, views have been expressed that a civil contempt may only need to be proved on the balance of probability. In NHB Enterprises, Bell P (as the Chief Justice then was) said on this subject:
"[194] As will be seen below, proceedings for criminal contempt may be brought in the Court's civil jurisdiction. This raises a nice legal question as to the appropriate standard of proof.
[195] The overwhelming weight of authority is strongly in favour of the criminal standard of proof applying to proceedings such as the present and, as noted at [2] above, the Applicants did not contend otherwise: see, eg, Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3 (Witham); Jimmy's Recipe at [51]; Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [118] (Mirus); Salvato at [17]; Mahaffy at [92]; and NCB at [27]. In NCB, Campbell J noted (at [27]) that the criminal standard of proof was required due to the "punitive nature" of proceedings for contempt. "
[196] In Eshow, however, White JA observed that:
"23. I add the following observation in relation to the appeal from the declaration made by Fagan J that the appellant was guilty of contempt of court.
24. The contempt with which the appellant was charged was a civil contempt. He submitted that the charge had to be proved beyond reasonable doubt, applying Witham v Holloway (1995) 183 CLR 525. The primary judge applied Witham v Holloway in finding that the charge needed to be established beyond reasonable doubt. His Honour was satisfied beyond reasonable doubt that the contempt charged was committed.
25. Accordingly, this appeal is not an appropriate vehicle for considering the application of Witham v Holloway to proof of alleged civil contempts in proceedings to which the Evidence Act 1995 (NSW) applies. Section 140 prescribes the civil standard of proof on the balance of probabilities, but having regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged, in a 'civil proceeding'. Section 141 prescribes the criminal standard of proof beyond reasonable doubt in a 'criminal proceeding'. Both terms are defined. These provisions were not in issue in Witham v Holloway where the trial preceded the introduction of the Act. (See Australian Securities and Investments Commission v Sigalla (No. 4) (2011) 80 NSWLR 113; [2011] NSWSC 62.)"
In these proceedings, Central Coast submitted that the prior binding authority of Whitham v Holloway (1995) 183 CLR 525, which held that the criminal standard applied for civil contempt has been overtaken by Evidence Act, s 140, as White J had discussed in Eshow, at [25]. Central Coast submits that s 140 requires that the standard of proof to be applied is determined by distinguishing between "criminal" and "civil" cases, and in relation to whether the conduct in contempt is an "offence". Central Coast also cites the decision of White J in Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113 ("Sigalla") at [36]-[75], [2011] NSWSC 62 in support of this contention.
But in NHB Enterprises, Bell CJ explains the nuanced nature of contempt settings:
"[197] As to the nature of contempt proceedings, the characterisation of contempt proceedings as being "criminal" by White J (as his Honour then was) in Sigalla at [87] has been criticised by the High Court, the Victorian Court of Appeal and the Victorian Supreme Court.
[198] In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261 at [498] (Grocon), the Victorian Court of Appeal noted that contempt proceedings 'have a certain chameleon-like quality. They take their character from their surrounding circumstances, and the context within which the analysis proceeds'.
[199] This chameleon-like quality of such proceedings was also noted by Zammit J in Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 at [28], where his Honour observed that Victorian courts have declined to follow Sigalla and to adopt the characterisation of contempt proceedings as "criminal", indicating instead that contempt proceedings use a "hybrid" of criminal and civil rules.
[200] In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [35] (Boral), the plurality of the High Court noted that 'the contempt proceeding is not a criminal proceeding' and, with reference to the High Court's earlier decision in Witham at 549, noted that proceedings for contempt of court to punish a respondent are 'civil and not criminal proceedings'. In Boral at [59], Nettle J observed that:
'Although the requirement that contempt be proved beyond reasonable doubt is the consequence of contempt proceedings being 'essentially criminal in nature', it does not mean that a contempt proceeding attracts all of the features of the criminal justice system. As was remarked in Witham v Holloway:
'to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences'".
Bell CJ continued in NHB Enterprises (at [203] to [205]) emphasising that the traditional distinction between civil and criminal contempt has not been abolished: Sigalla at [11]; Toyota Finance at [114]; Furlong at [93]; and Mirus at [116]:
"[203] The traditional rationale for the distinction was articulated in Witham at 531, where the plurality outlined that:
'The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.' (footnote omitted).
….
[205] The distinction between civil and criminal contempt was described in general terms by McHugh J in Witham at 538-539, as follows:
'Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has 'a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest'.'
[206] The notion that criminal contempt involves "contumacious" disobedience to the orders of the Court is a well-established proposition, as reiterated in a number of decisions including Furlong at [95]; Jimmy's Recipe at [60]; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [73]-[74] (Pang); Cohen v Double Bay Bowling Club [2019] NSWSC 1625 at [202] (Cohen); Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 489; [1965] HCA 21 (Morgan); and Mudginberri at 108. In Cohen at [202], Henry J noted that traditionally a criminal contempt is committed where, inter alia, a prima facie civil contempt involves deliberate defiance or is contumacious: see also Morgan at 489."
Established authority still requires a trial judge in this Court to require a party to prove a charge of civil contempt beyond reasonable doubt. That is the course taken in these reasons. These reasons now address Central Coast's case against Ms Wyatt.
[4]
Three Preliminary Problems for Central Coast's Case.
It is not in issue that Ms Wyatt was aware of the consent orders made by Robb J on 9 December 2020. On that occasion she was represented in Court by lawyers who it may be presumed communicated them to her.
The starting point for analysis is the statement of charge itself. The form of the charge exhibits features which immediately occasion difficulty for Central Coast's case. Two of them stand out.
First, the statement of charge does not follow the form of the consent order, order (1)(a) that Robb J made on 9 December 2020. The consent order was framed in terms that "the first defendant take steps to give the plaintiff (and its agents and servants) access to the dog-kennelling premises in dispute". Ordinarily a breach of such an order would involve the identification of individual steps, which it was said that the first defendant had failed to take, to give the plaintiff access.
But the charge is framed in terms that Ms Wyatt "failed to provide the plaintiff with access". In the charge no steps are identified that Ms Wyatt should have taken that would have given Central Coast access to the premises. The consent orders did not ensure the result that Central Coast would have access. They only required Ms Wyatt "to take steps… to give access". This is quite different from ensuring access.
The consent orders were appropriately drafted to reflect the reality on the ground at the Mandalong property. Ms Wyatt was not there all the time. Her estranged husband was still the registered proprietor of the Mandalong property and had rights of possession and access to it. Ms Wyatt could not always ensure in all circumstances that Central Coast would have access to the kennelling area on the property. Presumably her legal representatives were appropriately unwilling to offer Ms Wyatt up as an insurer of access.
The consent orders are in substance a mandatory rather than a prohibitory injunction. They require things to be done positively rather than restraining things that should not be done. The lawyers involved in the negotiations of the consent orders on behalf of Ms Wyatt appear to have carefully crafted this aspect of the orders. In the result Ms Wyatt was not subject to a simple continuous restraint on denying access. Rather her duty was to take individual positive steps to give access.
Given this structure is difficult to understand how Ms Wyatt could ever fairly have defended herself against a charge framed in terms that she "failed to provide the plaintiff with access". That was never her obligation. She only ever had an obligation under the consent orders to take individual identifiable steps to give access. She could not fairly be charged and tried for civil contempt without the precise steps that she was alleged not to have taken (defined by content and by date and time) being identified in the charge and the relationship between those steps and the likelihood of "access to the dog handling premises" being established.
The only correspondence that comes close to providing particulars of contempt was sent to Ms Wyatt and Mr Wyatt by the solicitors for Central Coast on 3 February 2021, before the contempt charge was brought. It specifies certain conduct alleged to have been engaged in contravention of the consent orders. But it does not indicate the dates or times of the conduct and does not connect it with the later contempt charge.
Because Ms Wyatt is not legally represented these aspects of the charge were never clarified. That was unfortunate. The trial proceeded in the absence of any clear identification of the steps that the plaintiff relied upon. General statements and affidavits and submissions and paragraphs of Ms Walton's evidence about individual incidents were never adequate to overcome this disadvantage.
On this ground alone the Court is not prepared to find this statement of charge proven against Ms Wyatt.
The second feature occasioning immediate difficulty for Central Coast is the words in the charge "and continued to fail to provide". The charge alleges continued conduct over a period of 30 months since 12 December 2020. This is clear from the fact that the charge distinguishes between individual acts and continuous acts by first stating that the first defendant "failed" - signifying individual acts - and then that the first defendant "continued to fail to provide" - signifying continuous conduct.
To make out such a charge Central Coast would have to prove to the Court's satisfaction to the required standard that for every day of the 30 months since 12 December 2020 Ms Wyatt engaged in continuous conduct that failed to provide Central Coast with relevant access. Central Coast's case does not come anywhere near accounting for what happened every day of those 30 months. And the fairness issue recurs here. Whatever the content of the continuous conduct was, it is not clearly identified in the charge. Central Coast has generally relied upon a vague allegation of denial of access over the 30-month period. But the consent orders do not impose such an obligation on Ms Wyatt. Instead, they impose an obligation to take steps which should be able to be identified in the charge itself. Instead, the charge leaves at large a range of conduct alleged against Ms Wyatt. The Court could not fairly find that the charge proven against Ms Wyatt.
The third problem with the statement of charge is that it shows duplicity: it combines two inconsistent allegations in the one charge. That is evident from the Court's analysis above that the statement of charge alleges two different actions against Ms Wyatt: that she "failed" and that she "continued to fail". It is logically possible for Ms Wyatt to take a different position on these separate allegations. She may for example have been prepared to admit that she had "failed" to take steps on a single occasion during the 30-month period the subject of the charge but wished to contest that she was guilty of continuous conduct in contravention of the consent orders.
This is no mere technicality. Establishing a contempt charge has serious consequences for a guilty defendant. The Court's consideration of appropriate consequences very much depends upon the gravity of the contempt. A proven single act of contempt on a single occasion may have vastly different consequences for a guilty defendant than a course of contemptuous conduct over 30 months.
This is another reason why the Court could not find allegations of contempt of the consent orders made out against Ms Wyatt on a charge framed in this way.
[5]
Four Issues in the Evidence
Even if the problems with the charge are overlooked, Central Coast faces difficulties in proving its case beyond reasonable doubt. It is convenient to group the analysis of these evidentiary problems under four headings as follows:
1. the boundary issue,
2. the barricades issue,
3. the AVO issue, and
4. the continuing contempt issue.
The last of these issues overlaps to a degree with the second procedural issue dealt with above but here the Court examines some of the evidence on that issue.
[6]
(1) The Boundary Issue
Robb J's consent order (1)(a) ordered that "the first defendant take steps to give the plaintiff access to the dog-kennelling premises in dispute". This description begs the question as to where the "dog kennelling premises" begin and where the rest of the Mandalong property ends. The question is important in determining whether there was a failure to take steps to give access to that precise area.
The consent order is to be contrasted with the interlocutory orders of 5 June 2023. In the latter orders the disputed area was defined with precision by a geometric diagram attached to the orders, identifying the boundary of the prohibited area of entry. This enabled the certain and convenient operation of the June 2023 orders, so that Central Coast could remove specific items from that area in an orderly way.
This issue complicates Central Coast's capacity to prove denial of access, as has been discussed earlier in these reasons.
[7]
(2) The Barricades Issue
On 11 May 2021, Ms Walton, the manager of the plaintiff, claims to have been unable to access the premises due to barricades being installed on the roadway leading into them. These barricades blocked the entrance to the Mandalong property on Old Maitland Road, Cessnock. On 27 August 2021, Ms Walton claims to have again been denied access to the premises due to barricades being installed in the same location, over the entrance onto Old Maitland Road.
The barricades in question appear on photographs to be approximately 1.5 - 2 metres in length, 1 metre high and 0.5m in width. Ms Wyatt claims these barricades are also full of water and thus extremely heavy. Ms Walton claims she noticed the barricades on 11 May 2021. She does not mention the barricades being present before this date. It is uncertain if they are still present on the property. Ms Walton said in evidence on 2 June 2023:
"I went on two separate occasions, and they were still there. We never attempted to enter, we just drove past, and the barricades are still there. I haven't been recently so I can't say".
Ms Walton claims the barricades were installed by Ms Wyatt. But Ms Wyatt claims that she physically cannot move them, and that Mr Shears, a builder employed to complete works on the premises, towed the barricades into place with his vehicle. She further contends Ms Walton immediately took a photo of the barricades to paint a scene - one which looked as though Ms Wyatt had deliberately impeded their access - as Ms Wyatt described it, "a set up". Ms Walton denies this.
Central Coast submitted that the Court should infer that Ms Wyatt put the barricades in place at the Old Maitland Road entrance to the Mandalong property, thereby committing an act of contempt. Central Coast does not have video recording of Ms Wyatt putting the barricades in place. Central Coast submitted that it could readily be inferred that Ms Wyatt put the barricades in place because she had the opportunity to do so and has passionate animosity towards the plaintiff.
But Central Coast has not proved this aspect of its case beyond reasonable doubt. Mr Wyatt is a co-owner and a registered proprietor of the Mandalong property with Ms Wyatt. It can be inferred from Mr Wyatt's legal right to possession of the Mandalong property that he can move items around on the property. That inference has not been gainsaid by Central Coast's evidence. The consent orders are silent on Mr Wyatt's role at the Mandalong property.
There is little evidence in Central Coast's case about the relationship between Mr Wyatt and Ms Wyatt. Ms Walton says that her understanding is that the couple were once married and have since separated. Ms Walton also said that Ms White was having difficulties with Mr Wyatt at the time the lease commenced but that he ultimately agreed in September 2020 that the lease could begin, and that Ms Wyatt had authority on behalf of the couple to lease out the dog kennelling area.
The Court infers from Ms Wyatt's statements from the Bar table during the proceedings that she and Mr Wyatt may be going through divorce proceedings. But there is no evidence that any property settlement has taken place. But none of this evidence suggests that Mr Wyatt lost his right to possession of or access to the Mandalong property by reason of any Family Court orders.
Central Coast's case indicates that Mr Wyatt and Mrs Wyatt have been estranged from one another since about 2016. Central Coast's evidence does not establish beyond reasonable doubt that Mr Wyatt was not on the Mandalong property at the relevant times that Central Coast alleges that the barricades were put in place. Central Coast has not excluded the likelihood that Mr Wyatt may have erected the barricades. Whilst Ms Wyatt appears to be the person with greater animus towards Ms Walton, Mr Wyatt's overall motivation and inclination remain uncertain. Central Coast's case has not excluded him as a possible actor beyond reasonable doubt. His involvement is a reasonable hypothesis consistent with the innocence of Ms Wyatt and must therefore be made in her favour.
[8]
(3) The AVO Issue
Order 1(a) of the consent orders required Ms Wyatt to take steps to give the plaintiff access to the dog-kennelling premises, subject to the operation of any apprehended violence order referred to in paragraph 2(f). Notation 2(f) stated that Ms Wyatt had applied for an Apprehended Violence Order ("AVO") against Ms Walton, but the matter had not been heard and no order had been made at that time. Central Coast needs to establish beyond reasonable doubt, there was no apprehended violence order which modified these orders in a manner which would alter or neutralise Ms Wyatt's obligations under them.
The background of this aspect of the consent order is that Ms Wyatt claims she was assaulted by Ms Walton in November 2020. Ms Wyatt claimed this assault occurred after a disagreement she and Ms Walton had over what Ms Wyatt claims to be misappropriated charity funds. Ms Wyatt subsequently attended Wyong Police Station on 21 November 2020 and applied for an Apprehended Violence Order ('AVO') against Ms Walton. These mutually understood facts must have been present to the minds of the parties when the consent orders were drafted.
Ms Walton denies assaulting Ms Wyatt and denies ever being arrested or charged by the police in relation to the alleged assault. She further claims the application was later dismissed by the Court, as Ms Wyatt failed, on more than one occasion, to attend Court to prosecute the matter. Central Coast claims that the AVO issue was dealt with and dismissed on 4 March 2021. Central Coast's evidence on this subject is based upon Ms Walton's general recollection. Although she was not cross-examined on the issue, it would have been relatively easy for Central Coast to obtain records which would indisputably demonstrate exactly what the terms of this AVO were and that it was dismissed.
Nor has Central Coast proved beyond reasonable doubt that any AVO, other than the AVO dismissed on 4 March 2021, was put in place. This too could have been done by searching the relevant Court registry and showing that no AVO continued against Ms Walton.
As the operation of the consent orders is subject to the existence and terms of the AVO, the failure to prove with precision the status of the AVO is fatal to the prosecution of this charge.
[9]
(4) The Continuing Contempt Issue
Central Coast sought by its Summons an injunction that the first defendant take all steps forthwith to allow the plaintiff and its servants and agents to regain access and possession of the leased premises, including:
1. provision of all keys;
2. provision of all necessary passcodes/access-codes; and
3. unlocking of any gates or chains impeding access to the Premises.
A brief examination of some of the evidence relevant to these matters shows the difficulties that Central Coast has in establishing beyond reasonable doubt that Ms Wyatt engaged in continuing conduct in contempt of the consent orders.
Provision of all Keys and Passcodes/Access-Codes. Central Coast claims that as at 31 January 2022, Ms Wyatt had still denied it access to the Mandalong property and had not provided keys. At the hearing on 5 June 2023, Central Coast contended that Ms Wyatt never took steps to give it keys or combinations to the locks placed on the perimeter of the premises. Ms Wyatt countered that Ms Walton was in possession of keys and has been able to access the premises. She also claims as of 15 December 2020, that the 'top gate' was locked with a bike lock set under a four-digit numeric code and that Ms Walton was aware of the code.
It is difficult for the Court to resolve this issue one way or the other on the state of the evidence. But the Court was left in a position of some doubt that Ms Walton may well have been given some keys and codes which would have given her access to parts of the property.
Unlocking of any Gates or Chains Impeding Access. Central Coast contends that by 15 December 2020, a gate had been erected preventing access to Central Coast's storage area within the leased area, and the locks to the Mandalong property had been changed.
Ms Wyatt included in her affidavit evidence text messages between Ms Wyatt and a person known as Ms Kim Pickavance, which are said to have taken place sometime between 8 November and "mid-December" 2020. In this series of text messages Ms Wyatt states:
"…I just told Don I'm done with them all and I'm changing the lock on the gate until they tell the truth."
Central Coast relies upon this statement to establish that Ms Wyatt changed the locks.
This evidence displays an intention for Ms Wyatt to deny access. But whether Ms Wyatt carried that intention into effect and when it was carried into effect is unclear. Even if the Court were to accept that Ms Wyatt changed the locks it is unclear to the Court this conduct and its effects were continuous and if so for how long.
In conclusion one other part of Central Coast's case should be mentioned. Central Coast relies upon an admission by Ms Wyatt that she disobeyed the consent order. In a document apparently signed by her, she says the following:
"It may be said that I have not adhered to his Honour Justice S. Robb's orders regarding the granting of access to Deanna Walton and her staff to my property and kennels, however; I do not deny refusing them access even over the protestations of her lawyers because".
But Ms Wyatt denied at the Bar table that she was the author of this document and Central Coast has not proved to the Court's satisfaction beyond reasonable doubt that she was its author.
Moreover, the admission does not assist Central Coast in overcoming the procedural and evidentiary problems outlined above. The admission does not prove a particular act in contravention of the Court's orders on a particular date or time, nor does it prove a course of continuous conduct. And it is not an admission framed in terms of the consent orders but rather seems to be an admission of breach of a prohibitory injunction by which Ms Wyatt was never bound.
[10]
Conclusions and Orders
The first defendant Ms Wyatt has been successful on Central Coast's contempt motion. Were Ms Wyatt legally represented she would have been able to apply for an order for her legal costs be paid by Central Coast. But she is not legally represented and as a result at the most she may be able to claim certain very limited out of pocket disbursements and expenses such as filing fees. Loss of income and other consequential expenses are not claimable by a litigant in person. Moreover, whatever limited expenses that Ms Wyatt have incurred, they may need to be offset against the costs orders that have been made against her by Meek J and her obligations to meet the orders of the Court appointed Court expert who supervised the removal of Central Coast's goods on 15 June 2023.
The best course in the circumstances is for the Court is to make no order as to costs but to give Ms Wyatt the liberty for a limited period to file a motion returnable before me to seek any out-of-pocket expenses. Should Ms Wyatt decide to file a motion and it is unsuccessful then she will risk a further award of costs against her. Central Coast also have leave to file any motion in relation to costs during the same period and on the same terms.
Now that the Court has dealt with this contempt motion, the main hearing of these proceedings is yet to take place. Any incidental issues in relation to the contempt motion can be dealt with in chambers. But the main proceedings should now be re-listed before the Registrar for further pre-trial management.
For these reasons the Court makes the following orders and directions:
1. The plaintiff's motion dated 22 October 2021 is dismissed.
2. Note that the Court proposes to make no order as to costs upon the dismissal of the motion.
3. If either party seeks a costs order to displace Note (2), that party has liberty to apply provided that the liberty is exercised by the filing of a motion returnable before Slattery J, seeking a defined costs order within 21 days of the date of these orders, that is by 20 July 2023.
4. Order that the plaintiff be granted leave to amend its Summons in accordance with Annexure A to the plaintiff's motion dated 20 October 2021 and filed in the proceedings on 22 October 2021.
5. List these proceedings for further directions in the Registrar's list on 19 July 2023.
[11]
Annexure A
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 June 2023