Environment Protection Authority v Waight

Introduction 1 The defendant, Mr Michael Jeffrey Waight, has been charged with contempt of the Court for disobedience of some of its orders. He has pleaded not guilty to that charge. 2 On 22 June 2001, the defendant was convicted of two tier 1 offences, one a contravention of s 5(1) of the Environmental Offences and Penalties Act 1989 ("the EOP Act"), and the other a contravention of s 6(1) of the EOP Act in proceedings heard and disposed of by Sheahan J ("the original proceedings"). On the same day, the Court made orders under s 14 of the EOP Act ("the s 14 orders") for the remediation of the property at lot 204 Old Northern Road, Glenorie ("the property") in respect of which the offences had been committed. In these present proceedings, the prosecutor alleges that the defendant has failed to comply with some of the s 14 orders and I shall refer to those orders in respect of which that failure is alleged as "the remediation orders".

Background 3 It is convenient to set out some general background facts. Most of these facts have been derived from the judgment of Sheahan J in the original proceedings (EPA v Waight [No 3] [2001] NSWLEC 126). 4 The property is on the western side of Old Northern Road. The area is steep, and provides a catchment for a number of springs, creeks and gullies all of which ultimately flow to the Hawkesbury River. The configuration of the property and its environs was schematically set out in a diagram ("the Anink diagram") prepared by Mr P Anink, a consultant called by the defendant in the original proceedings. A copy of the Anink diagram was attached to the judgment. 5 The offences of which the defendant was convicted related to a landfill embankment constructed by the defendant. During a major storm event in May 1998, the landfill embankment substantially subsided and collapsed into the creek noted as ME on the Anink diagram. Sheahan J made findings as to negligent disposal of waste (for the purpose of s 5(1)) and negligent escape (for the purpose of s 6(1)) in pars 279 and 280 of the judgment. 6 The property was originally owned by the defendant and his wife. In August 2000, the defendant and his wife sold the property to the Maha Budhi Monastery. That sale took place after the original class 5 application had been filed but before the hearing of the original proceedings. In the present proceedings, Mr J T Saliba, who acts as an honorary adviser to the monks, gave some evidence about the sale transaction. He said that, out of the settlement price, an amount of $20,000 was retained by the new owner to be held in trust for the defendant until the monastery was satisfied that "all work had been done satisfactorily to the Court Orders". Mr Saliba was available to provide access to the property to the defendant.

Jurisdiction 7 Before I deal with the remediation orders in detail, I turn to the question of whether the Court has jurisdiction to entertain the prosecutor's notice of motion alleging the defendant's contempt of court. 8 Mr Laucis of counsel, who appeared for the defendant, did not challenge the Court's jurisdiction. However, the matter is an issue because first, jurisdiction is not conferred upon the Court simply by consent: Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319 and secondly, s 14 expressly provides a method for the enforcement of orders made under s 14(2) but not of orders made under s 14(1). The remediation orders were made, as I said in par 2, under s 14(1) in class 5 proceedings. Furthermore, so far as my researches show, there has only been one previous case where proceedings for contempt have been brought in class 5 of the Court's jurisdiction. That case is Yarrowlumla Shire Council v Fenwick [2000] NSWLEC 121 where an application was made for punishment for contempt of undertakings given to the Court by the defendant in class 5 proceedings. On 31 January 2001, Sheahan J held the defendant in those proceedings to be in contempt and imposed a fine upon him, but the Court's file does not indicate if any question of jurisdiction was raised, nor does the file contain any record of his Honour's judgment in the proceedings. 9 Section 14 provides as follows: 14(1) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may order the person convicted to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow), to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence. (2) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may, where it appears to the court that: (a) a public authority has incurred costs and expenses in connection with the prevention, control, abatement or mitigation of any such harm, or (b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage, order the person so convicted to pay to the public authority or person the costs and expenses so incurred, or compensation for loss of or damage to property so suffered, as the case may be, in such amount as is fixed by the order. (3) An order made by the Land and Environment Court under subsection (2) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. 10 It can be seen that s 14 is silent as to the method of enforcement of an order made under s 14(1). But, in respect of the special type of orders which may be made under s 14(2), it expressly provides, in s 14(3), that they may be enforced as if they were orders made in class 4 of the Court's jurisdiction. Furthermore, s 20(4) of the Land and Environment Court Act 1979 ("the Court Act") provides that the Supreme Court Act 1970 and its rules relating to enforcement of orders apply to orders in class 4 of the Court's jurisdiction. However, the present proceedings are class 5 proceedings. Hence s 14 of the EOP Act does not assist and s 20(4) of the Court Act does not apply. One must consider, therefore, whether there is some other source of jurisdiction for the Court to enforce compliance with orders made in class 5. 11 Section 67 of the Land and Environment Court Act 1979 ("the Court Act") relevantly provides as follows: 67 The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters: (d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, … 12 The Supreme Court is a superior court of record of unlimited jurisdiction (s 23 Supreme Court Act 1980) and it has, at common law, the power to punish for contempt of its orders: R v Metal Trades Employers' Association; ex p Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241. But, in contrast, this Court, whilst it is a superior court of record, (s 5(1) of the Court Act), has a limited jurisdiction (National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 71 LGRA 286 at 290). Hence the question arises as to whether s 67(d) is simply a statutory source of power for this Court to punish for contempt, or whether s 67(d) is declaratory of an inherent or implied power of this Court to punish for contempt, arising as a consequence of its status as a superior court of record. In Hawkesbury City Council and Anor v Mushroom Composters Pty Ltd (1997) 97 LGERA 12 at 23 Sheller JA noted this question, and expressed the opinion that the better view was the latter, a view which his Honour had earlier formulated (in a different context) in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 27 - 28. 13 Mr Buchanan SC, appearing for the prosecutor, submitted that, at this stage in these proceedings, nothing turns upon whether the Court's jurisdiction to punish for contempt is described as statutory, or inherent, or implied. I agree with that submission. In my view, s 67(d) confers a power upon this Court to punish for contempt of "any of its orders", and that power extends to punishment for contempt of orders made in its class 5 jurisdiction pursuant to the power conferred by s 14 of the EOP Act. 14 However, that is not the end of the matter. Section 67(d) describes the source of power, but it says nothing of the content or ambit of the power. That is prescribed, in a rather tortuous way, by the rules of court. Part 6 r 2 of the Land and Environment Court Rules 1996 ("the LEC Rules") provides that, in relation to proceedings in class 5, div 2 of pt 75 of the Supreme Court Rules 1970 ("the SC Rules") is taken to form part of the LEC Rules (with necessary adaptations). Part 75 of the SC Rules deals with criminal proceedings, and div 2 of pt 75 deals with summary jurisdiction. Part 75 r 6 of the SC Rules, which falls within div 2 and thus applies in this Court by virtue of pt 6 r 2 of the LEC Rules, provides that, "in addition to the rules mentioned in rule 2", certain rules apply to proceedings to which div 2 applies. Part 75 r 2(n), which is in div 1, provides that the rules that so apply include the rules in pt 55. Part 55 contains rules which deal with contempt. Hence, pt 55 of the SC Rules applies to proceedings for contempt arising out of orders made in class 5 of this Court's jurisdiction. 15 A final matter to note in this context is pt 55 r 6(1) of the SC Rules, which relevantly 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. Here the application for punishment was made by the prosecutor by notice of motion filed on 29 August 2002 and filed in the original proceedings. 16 For all these reasons, I hold that the Court has jurisdiction to entertain the charge of contempt brought by the prosecutor. 17 I proceed, therefore, to deal in turn with each of the remediation orders. I do so on the basis of the allegation that, as at the date of the statement of charge, being 29 August 2002, the defendant was in contempt of court for having failed to comply with each of the remediation orders.

Order 1(d) - planting indigenous species on embankment 18 Order 1(d) provided as follows: 1(d) cause a registered bush regenerator to plant suitable indigenous plant species on any areas of the embankment disturbed by works required by orders (a), (b) and (c).

The reference to orders (a), (b) and (c) is a reference to the paragraphs of order (1) which precede order 1(d). They refer to orders to construct and/or install support structures for the overstep cut faces of the zig-zag track according to the respective specifications set out in the orders. The expression 'zig-zag track' was defined (for the purpose of the s 14 orders) to mean "… the existing zig-zag track leading from the crest of the embankment to the toe of the embankment". The expression " embankment" was defined (for the purpose of the s 14 orders) to mean the landfill embankment on the property. (There is no allegation in these proceedings that the defendant has failed to comply with orders 1(a), (b) or (c), and for the purpose of considering order 1(d), it may be assumed that the works they require have been carried out.) 19 Although the wording of order 1 is not entirely clear, the parties appear to accept that order 1(d) required compliance within three months of the date of the s 14 orders, that is, by 21 September 2001. The allegation is that the defendant failed to comply with order 1(d) by that date. 20 Mr J Thompson is an environment protection officer in the employ of the prosecutor. He inspected the property on several occasions, but two of those inspections are relevant to order 1(d), namely, his inspections on 25 September 2001 and 9 January 2002. Mr Thompson took videos of these inspections, and they corroborated his observations. On the first of those inspections, he did not observe any evidence of native plants having been planted on any areas of the embankment, especially the zig-zag track. He saw weeds, mainly thistle, on the embankment that were, on average, about 0.5 metres high. 21 On 9 January 2002, he again saw no evidence of the planting of native species on the disturbed areas of the embankment or the zig-zag track. There were weeds, mainly thistle, in the disturbed areas. He saw a container of herbicide near the bottom of the embankment. The weeds appeared to have been sprayed with herbicide and some were dying. 22 Mr M D Garrod, who was also an environment protection officer in the employ of the prosecutor, accompanied Mr Thompson on each of these two inspections, and he corroborated Mr Thompson's evidence to some extent. On the first inspection, he saw many plants on the embankment, the majority of which he recognised to be thistles, but he could not recall whether there were any plants on the disturbed areas of the embankment. He did not recall seeing anything on the second inspection that made him think that there had been recent planting of vegetation on the embankment. 23 Mr R S Lembit, an environmental consultant, gave evidence of an inspection of the property which he carried out on 12 July 2002. His inspection did not reveal any planting of indigenous species on the embankment since the making of the s 14 orders.

Order 7 - maintenance of the sediment basin 24 Order 7 provided as follows: 7 Following installation of the structures and works required to be installed by order 4 until the date 20 years from the date of these orders, maintain those structures and works in a proper and efficient condition.

The structures and works required to be installed by order 4 comprised a sediment and nutrient catch basin. It is common ground that it has been installed, but the allegation is that the defendant has failed to maintain it in a proper and efficient condition. 25 Mr Thompson inspected the property on 23 May 2002. He observed that the constructed sediment and nutrient catch basin comprised two basins, one larger than the other on the toe of the embankment, and the other smaller one to the west. He saw a scour mark immediately adjacent to and on the southern side of the basin. Mr Thompson's opinion was that the scour mark appeared to be created by water rushing during and after rainfall from a pipe located above and to the southern side of the sediment basin. In giving oral evidence, he explained that there was a concrete stormwater pipe adjacent to the retaining wall at the toe of the embankment, and that it carries water from the affected creek. 26 Mr Thompson was of the opinion that the scour mark was undercutting the southern or downstream wall of the sediment basin, and that, unless it was rectified, the wall on the lower side of the sediment basin would collapse into the creek, the sediment basin would fail in its operation of detention of sediments, and sediments would be released into the creek.

Order 8(a) - removal of the embankment 27 Order 8(a) provided as follows: 8 Within 6 months of the date of these orders: (a) cause the artificial embankment to be removed.

The artificial embankment was defined for the purpose of the s 14 orders as follows: 'artificial embankment' means so much of the embankment located adjacent to the affected creek on its southern bank, approximately 50 metres downstream of the existing retaining wall as shown on the Barrie Green survey dated 28 February 2000 as comprises non-indigenous materials. 28 The allegation is that the defendant failed to remove the artificial embankment as defined within six months, that is, by 21 December 2001. 29 Mr Thompson inspected the property on 9 January 2002. He did not see any recent disturbances or earthworks in the area of the artificial embankment. He observed bricks and concrete rubble at the surface of the soil as well as pieces of plastic and conduit. 30 His observations were corroborated by Mr Garrod, who had accompanied Mr Thompson on his inspection on 9 January 2002. Mr Garrod's evidence was that the artificial embankment had changed very little since a previous inspection he had made, and that it was still a large raised area, roughly triangular in shape. He saw pieces of bricks, concrete, timber and other building rubble upon it. It did not appear to Mr Garrod that the artificial embankment had been recently disturbed or that any work had recently been done to it.

Order 9(a) - removal of weeds in the affected creek 31 Order 9(a) provided as follows: 9 Within 6 months of the date of these orders: (a) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause all weeds present in and about the affected creek (including in the riparian zone and on its banks) to be removed by a registered bush regenerator.

The affected creek was defined (for the purpose of the s 14 orders) as follows: 'affected creek' means the section of the creek, being the creek which runs in a generally east/west direction from the toe of the embankment to the confluence of that creek with the creek marked SS, being the the creek so referred to on page 166 to the affidavit of Paul John Anink sworn 28 October 2000 and filed in these proceedings.

32 For the purpose of the s 14 orders, 'registered bush regenerator' was defined as "a bush regenerator registered as such with the Australian Association of Bush Regenerators" and 'weeds' as "plant species that are not indigenous to the environment of the affected creek". 33 The allegation is that the defendant failed to comply with order 9(a) within six months, that is, by 21 December 2001. 34 Mr Thompson inspected the property on 9 January 2002. He observed weeds present in the affected creek and the riparian zone of the creek in the first 50 metres of the creek line downstream from the toe of the embankment. He saw no evidence of any effort to remove those weeds. Since there was a significant growth of weeds, he concluded that weeds had been present for a number of months. 35 On his inspection on 12 July 2002, Mr Lembit saw no evidence that any significant efforts had been made to remove weeds along the affected creek. He observed populations of weeds in the section of the affected creek between the embankment and the artificial embankment. His conclusion was that no registered bush regenerator had been employed to remove weeds along the affected creek, or, if they had, that the work had been ineffective.

Order 9(b) - removal of non-indigenous material in the affected creek 36 Order 9(b) provided as follows: 9 Within six months of the date of these orders: (b) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause to be removed by a registered bush regenerator, all non-indigenous material (including any non-indigenous soils and sediments) deposited in and about the affected creek (including in the riparian zone and on its banks).

The allegation is that the defendant failed to comply with order 9(b) within six months, that is, by 21 December 2001. 37 On his inspection of the property on 9 January 2002, Mr Thompson observed non-indigenous material in and on the banks of the affected creek from the toe of the embankment to a point approximately 150 metres downstream. His evidence was that the material was mainly wood, foam and plastic, although there were also pieces of concrete or brick.

Order 13 - maintain the affected creek in a weed free condition 38 Order 13 provided as follows: 13 During the period commencing 6 months from the date of these orders and expiring 5 years and 6 months from the date of these orders, so far as is reasonably practicable, cause the affected creek to be maintained in a weed free condition.

The allegation is that, commencing from 21 December 2001 (being commencement of the stipulated period) the defendant has failed to comply with order 13. 39 On his inspection on 9 January 2002, Mr Thompson observed many weeds in the affected creek and the riparian zone, particularly in the first 50 metres of the creek line downstream of the toe of the embankment. He saw no evidence of disturbance, but there was evidence of significant growth of weeds, and he concluded that there was no evidence of any efforts to remove the weeds. 40 Mr Lembit did not see, on his inspection on 12 July 2002, any evidence to indicate to him that weed removal had taken place along the affected creek.

Mr Jack's evidence 41 The prosecutor adduced evidence from Mr W Jack. He is the director of Sydney Bush Regeneration Company Pty Ltd, and he is a registered as a bush regenerator with the Australian Association of Bush Regenerators. 42 The defendant took issue with a great deal of Mr Jack's evidence, and challenged Mr Jack's recollections, especially as to conversations, in the defendant's own affidavit sworn on 10 March 2003. Mr Jack was also cross-examined at some length. 43 I have carefully considered Mr Jack's evidence having regard to the defendant's countervailing evidence and Mr Jack's cross-examination. I am satisfied, to the criminal standard, that the following matters are established by Mr Jack's evidence, and I so find: (1) Mr Jack is a registered bush regenerator within the definition of that term in the s 14 orders. (2) He was contacted by the defendant at some date in November 2001. Mr Jack advised the defendant that he could carry out work in the field for the defendant, but that he would not prepare any bushland management reports. He referred the defendant to a Mr M Watson for the purpose of obtaining any bushland management report. (3) The defendant furnished Mr Jack with copies of the s 14 orders and arranged for Mr Jack to attend the property. (4) Mr Jack attended at the property on 13 December 2001 with two employees. He spoke with the defendant on the site and walked over some of the property with him. (5) Mr Jack's employees worked on the property for most of the day on 13 December 2001. They removed weeds from the affected creek. (6) On 9 April 2002, Mr Jack rendered an account to the defendant for the work done on the property on 13 December 2001, and that account contained a document entitled "contract report" which specified the fact that a total of 17 hours had been spent carrying out on the work on that date. It also contained the following under the heading "description of the work": Handweeded along the creekline and edges from just below the boundary of M J Waight's former property to just past the third silt fence down. Main weeds encountered were Verbena, thistle, couch, Paspalum, Ehrharta, Conyza, Ageratina, Rubus and Solanum nigrum. The account has never been paid by the defendant. (7) One of Mr Jack's employees had prepared a somewhat fuller report of the work done on the property on 13 December 2001, but that report was not furnished to the defendant. (8) The defendant wrote to Mr Jack on 20 December 2001, 21 January 2002 and 1 April 2002, on each occasion requesting a report generally about the work to be done in response to the Court's orders. Mr Jack did not respond to these letters until he sent to the defendant the account to which I have referred above. In his response, Mr Jack offered to do further work on another day if the defendant so wished, but added: "… [w]e are not currently undertaking any consultancy work, which is why I initially put you in touch with Mark Watson …". (9) Neither Mr Jack nor his employees returned to the property. 44 Mr Jack and the defendant gave different versions as to what was said between them in the conversation which they had on the property on 13 December 2001. In giving oral evidence, Mr Jack said: Mr Waight was very vague as to what work was actually required. He merely brandished the court orders that he had with him as if they were some kind of specification or rehabilitation plan for the site. He gave no indication of what budget or what resources were available to us to actually do the work and no indication whatsoever of the extent of the work that was to be carried out. He led us to a relatively small area right at the bottom of the property along the creek line and indicated to us that there was some weeding to be undertaken there in some areas which we undertook. 45 In cross-examination, Mr Jack conceded that, although he could not specifically recall the words alleged to have been said by the defendant, there may have been some conversation about several matters, namely, fee rates of $30 per hour for fieldwork and $45 per hour for reporting, providing a report of the work actually carried out on the property, needing to return to the property on further days to finish the work, planting some tube stock and obtaining native vegetation seedlings priced at $1 to $2 per seedling. But Mr Jack denied that the defendant specified the work to be done, or that he told the defendant that he would come to the property again to assess the disturbed area for replanting, or that he gave the defendant an estimate of the quantity of tube stock which was required. 46 I am satisfied beyond reasonable doubt on the basis of the foregoing that the defendant engaged Mr Jack as a registered bush regenerator. Mr Jack provided to the defendant a total of 17 hours in partial compliance with order 9(a) but that the work required by order 9(a) was not completed. I am also satisfied beyond reasonable doubt that Mr Jack did not plant indigenous species as required by order 1(d), nor did he remove non-indigenous material as required by order 9(b).

The defendant's evidence 47 The defendant provided a lengthy affidavit and was extensively cross-examined. I make the following findings about his evidence: (1) It did not cast any serious doubt on a possible finding that the defendant had breached the remediation orders as at 29 August 2002. (2) Although the defendant challenged some of the evidence of Mr Jack, Mr Thompson and Mr Saliba, he did not provide any challenge to the evidence of Mr Thompson, Mr Garrod and Mr Lembit as to their observations which I have outlined in pars 18 - 40. (3) The defendant's evidence at its highest revealed an ineffective and often misplaced effort to take some action having regard to the remediation orders. This is particularly obvious in the history of the defendant's efforts to engage a registered bush regenerator to comply with orders 1(d), 9(a) and 9(b). The defendant asserted in the witness box, but without being able to provide specific details, that he had attempted but was unsuccessful in employing a registered bush regenerator during a period prior to November 2001 when he had his first communication with Mr Jack. He did arrange, as I have found (see par 43) for Mr Jack to come to the property on 13 December 2001. But the defendant did not arrange for Mr Jack to return to continue the work. The defendant then made desultory efforts to contact another registered bush regenerator - he had some discussion with Mr P Zisserman, from Greening Australia, and with a Ms J Meachan, but ultimately neither of those persons was willing to do the job. (4) Nor did the defendant engage Mr Jack in any coherent manner. Apart from providing Mr Jack with a copy of the s 14 orders and showing him parts of the property, the defendant did not furnish him with any precise specifications as to the work to be done. Nor did the defendant take Mr Jack's advice that he engage Mr Watson to prepare a bushland management report, although the defendant did telephone Mr Watson on at least one occasion. The defendant denied Mr Jack's version of the conversation that they had had on 13 December 2001, but, even if I were to accept the defendant's version as accurate, nonetheless it did not amount to a clear direction and specification of the work to be done. Some removal of weeds in the affected creek was carried out on 13 December 2001 by Mr Jack's employees but it was not able to be completed on that day as the defendant was well aware. Yet the defendant did not arrange for Mr Jack's return. As I have set out in par 43(8), the defendant wrote to Mr Jack on the occasions there mentioned, but none of those letters contain a direct or even implied request to return to continue work. Instead the letters all sought a report from Mr Jack that could be furnished to the prosecutor, and they bear out Mr Jack's opinion, expressed in his affidavit, that the defendant "… was only interested in a paper trail and reports rather than improving the quality of the land concerned". (5) The defendant's evidence reveals a number of actions taken by the defendant which have nothing to do with compliance with the remediation orders, and many of which relate to periods subsequent to the commencement of the contempt proceedings on 29 August 2002. Thus, the defendant became concerned with the possible deleterious impact on native vegetation on the embankment and the affected creek from pines planted and compost piles placed by the monks on the property, and he arranged for tests of the compost to be carried out. Similarly, he arranged for a firm called Rural Landscapes to come to the property on 1 October 2002 and spray weeds on the embankment and the zig-zag track. He gave evidence about other matters that related to some of the s 14 orders (but not the remediation orders), such as the engagement of a company called Abafone Pty Ltd to install the sediment and nutrient catch basin, and of another organisation, Keighran Geotechnics, to provide geotechnical reports. (6) The defendant gave evidence that he himself had done some weeding, planting and removing bricks and concrete pieces from the embankment and the zig-zag track on 20 September 2001, 21 September 2001, 2 February 2002, 20 April 2002 and 8 June 2002. As is clear from the terms of orders 1(d), 9(a) and 9(b), this did not constitute compliance, not the least because it was the defendant's obligation to cause the work specified in those orders to be carried out by a registered bush regenerator, not to carry out the work himself. (7) The defendant asserted, perhaps by way of explanation for failure to remove the artificial embankment (as defined) as required by order 8(a), that both Mr Jack and Mr Zisserman had recommended that it not be removed. But their opinions (if they were in fact expressed - Mr Jack denied it) are irrelevant at this point. The s 14 orders were considered in draft, as the defendant acknowledged in cross-examination, by the defendant, his legal advisers and his expert adviser Mr Anink prior to their being pronounced by Sheahan J. That was the time to determine if the artificial embankment should or should not be removed. (8) The defendant's responses to questions put to him in cross-examination did not assist his case at all. He prevaricated or he gave unresponsive or argumentative answers. 48 The defendant was asked directly, in cross-examination, whether he had or had not complied with each of the remediation orders. He at first denied any failure to comply, and then retreated from that position, and asserted instead that he had attempted to comply with the "spirit" of the remediation orders. Ultimately, in answer to questions as to why he had not applied to the Court for a variation of the remediation orders, he made the following admission: Q When you say getting things tidy, what do you mean, sir? A I mean it would be better if I came in here and said Mr Jack had completed these - his bush regeneration work every two or three months as is required, I think that's the main one that we haven't done something about. I would like to have been able to have done that. I haven't.

Is the defendant guilty of contempt? 49 A person will be liable to be punished for contempt which involves wilful disobedience to a court order. A deliberate omission which is in breach of an injunctive order will constitute such wilful disobedience unless the omission is casual, accidental or unintentional - Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113. 50 Furthermore, contempt proceedings are criminal in nature, and the charge of contempt must be proved according to the criminal standard, that is, beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525. 51 I am satisfied beyond reasonable doubt that the defendant has failed to comply with each of orders 1(d), 8(a), 9(a) and 9(b). The evidence of failure to comply, which I have set out in pars 18 - 23 and 27 - 37, is compelling and unchallenged. Moreover, the defendant has admitted failure to comply with orders 1(d), 9(a) and 9(b) (see par 48). The only conclusion to be drawn from the evidence adduced by the defendant is that he went upon the property many times and did many things. But all of them were sporadic, ineffective and uncoordinated. He did not, from the time the s 14 orders were made until these contempt proceedings were instituted, set about compliance with any of the remediation orders in any direct or comprehensive way. 52 However, I am not so satisfied that the defendant has failed to comply with orders 7 and 13. Compliance with order 7 requires maintenance of the sediment and nutrient catch basin in a proper and efficient condition. Maintenance is, of course, on ongoing commitment. But the only relevant evidence is that of Mr Thompson's inspection on 23 May 2002 when he observed a scour mark on the southern side of the basin, and he expressed the opinion that the basin might fail to operate. That evidence says nothing about the condition of the sediment and nutrient catch basin at any other time, and therefore it says nothing about a failure to maintain. Order 13 requires maintenance of the affected creek in a condition free of weeds. It is plain that it follows upon compliance with order 9(a) which requires all weeds in the affected creek to be removed. Since order 9(a) has not been complied with (so that the affected creek is free of weeds), it is unrealistic to regard the obligation to maintain it weed free to have crystallised, despite the commencement of the specified period. 53 The defendant's principal defence was an assertion that the failure to obey the remediation orders was not deliberate or reckless in that he did not intend to breach them but acted to the best of his ability to comply. Mr Laucis put this defence on the basis that mens rea, or intent, is an essential element in a charge of contempt, that it must be proved beyond reasonable doubt, and that the prosecutor had failed to establish to the relevant standard that the defendant had an intention to disobey the remediation orders. Mr Laucis submitted that the very serious penalties which are a possible consequence of a finding of contempt, such as committal to prison, establish that guilty intent must be proved beyond reasonable doubt. He relied upon He Kaw Teh v The Queen (1985) 157 CLR 523 at 535 for the proposition that "[t]he gravity of the offence suggests that guilty knowledge was intended to be an element of it". 54 However, I reject the proposition that mens rea is an essential element in a charge of contempt. Although proceedings for contempt are criminal in nature, that does not "… equate them with the trial of a criminal charge": Witham v Holloway at p 534. The fundamental purpose of contempt proceedings is not only to punish the contemnor - it is also to vindicate the authority of the court: AMIEU v Mudginberri at p 113 and 114. It is the purpose of upholding the effective administration of justice that renders proceedings for contempt sui generis (Morris and Ors v Crown Office (1970) 2 QB 114 at 129). For this reason, He Kaw Teh v The Queen is distinguishable. That was a case dealing with the general principles of the common law which govern criminal responsibility (see pp 527 - 528) and it is not authority for the proposition which Mr Laucis put forward. Furthermore, the proposition is contrary to other authority. In Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190 at 194, Warrington J said, in a passage expressly approved in AMIEU v Mudginberri at 112: … if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. 55 That passage was referred to by Southwell J in McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 314. By reference to those authorities, Stein J (as he then was) rejected a similar proposition in Baulkham Hills Council v Australian Kafarsghab (Lebanese) Association Ltd [No 2] (1994) 83 LGERA 168 at 170. 56 In rejecting Mr Laucis' proposition, I am not suggesting that intent is irrelevant for any purpose. It may be important in determining what is an appropriate punishment: Attorney-General v Times Newspapers Ltd and Anor (1992) 1 AC 191 at 217. 57 Mr Laucis next submitted that, in relation to the finding that the defendant did not provide a specification to Mr Jack of the work to be done in compliance with orders 1(d), 9(a) and 9(b), it did not make sense for the defendant to be required to obtain the services of a registered bush regenerator, yet be required himself to work out how that bush regenerator would comply with the remediation orders. But orders 1(d), 9(a) and 9(b) obliged the defendant himself to cause the work to be done, albeit using a registered bush regenerator for the purpose. It was the defendant's responsibility to work out a plan or method for the orders to be complied with: Australian Competition and Consumer Commission v Hughes (2001) ATPR 41-807. 58 As to orders 9(a) and 9(b), Mr Laucis submitted that compliance was a matter of degree, especially by reference to the words "… to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species …" which appear in both orders. He submitted accordingly that there had been substantial compliance with these two orders. But this submission is contrary to the evidence. There had been no significant effort to remove weeds from the affected creek, and non-indigenous material still remained in it when Mr Thompson inspected it on 9 January 2002. Furthermore, there was no evidence adduced by the defendant from which to infer that any failure to comply arose from the need for protection of the regrowth of indigenous species. 59 I am satisfied that the defendant's disobedience of orders 1(d), 8(a), 9(a) and 9(b) was wilful, in that it was in each case constituted by a deliberate omission that was not casual, accidental or unintentional. In the case of order 8(a), the defendant took no step of any kind within the stipulated time to remove the non-indigenous material which formed, by definition, the artificial embankment. That omission was not casual, accidental or unintentional. I make the same finding about order 1(d). The defendant took no step within the stipulated time to cause a registered bush regenerator to plant indigenous species as required. Apart from furnishing Mr Jack with a copy of the remediation orders and having a desultory and unspecific conversation with him about native plants, he took no step to cause Mr Jack to carry out that planting. The omission to comply with order 1(d) was not casual, accidental or unintentional. As to orders 9(a) and 9(b), the defendant's obligation was to cause the removal of weeds (in the case of 9(a)) and the removal of non-indigenous material (in the case of 9(b)). To do that, the defendant was obliged to employ a registered bush regenerator. He did not cause such removal. Mr Jack was engaged, but worked only for one day. The defendant did not re-engage Mr Jack, nor did he respond to Mr Jack's offer to return, nor did he pay Mr Jack's bill for the work done. Instead, the defendant took sporadic and ineffective steps to engage another registered bush regenerator. The omission to comply with orders 9(a) and 9(b) in these circumstances was not casual, accidental or unintentional.

Orders 60 For the foregoing reasons, I find the defendant guilty of contempt of orders 1(d), 8(a), 9(a) and 9(b) made by this Court on 22 June 2001. 61 There remains outstanding the defendant's notice of motion seeking an extension of time for compliance with the s 14 orders. The notice of motion was held in abeyance pending determination of the charge of contempt. 62 I grant leave to the parties to obtain from the Registrar a date for the hearing of submissions on punishment for contempt and disposal of the notice of motion.

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