7 An affidavit of James Pelosa sworn 19 September 2006 was read in the contempt proceedings and at the hearing on 12 February 2007. In his affidavit Mr Pelosa, a surveyor for the Council, attests that on 15 December 2005 he was provided with copies of two drawings for the purpose of calculating landfill at the site, both of which were annexed to his affidavit. One drawing was prepared prior to the landfill (dated May 2000) and the other prepared subsequent to the landfill (dated 28 February 2005). Mr Pelosa calculated 2100 cubic metres of landfill had been placed at the site and prepared a plan dated 8 August 2005 identified as JP3. This became exhibit B in the proceedings on 12 February 2007 and is referred to in order 1 of the consent orders made 12 February 2007.
8 Mr Pelosa's affidavit of 19 September 2006 was served on the Defendant on 29 September 2006 as evidenced by the statutory declaration of Christopher Nolan, licensed commercial agent, dated 26 October 2006.
9 In another affidavit sworn 21 August 2008, which was read in the contempt proceedings, Mr Pelosa states that he was asked to carry out a survey of the site in June 2008 to ascertain whether the 2100 cubic metres of landfill as calculated in his earlier affidavit still remained. He referred to two plans, one annexed to the affidavit of Mr Kerfoot dated 21 August 2008 which was prepared in June 2008 (see par 10), the other prepared in February 2005 and annexed to Mr Pelosa's affidavit. Apart from minor variations in levels between the two plans there was, in Mr Pelosa's opinion, no apparent or substantial increase or decrease in ground levels that would indicate any fill had been removed since the earlier survey in February 2005. He stated that there was still approximately 2100 cubic metres of landfill at the site.
10 An affidavit of Robert Kerfoot sworn 21 August 2008 was read for the Council. Mr Kerfoot is a surveyor with Fairfield City Council and was asked by Mr Pelosa to carry out a survey of the site in June 2008. Annexed to his affidavit is the plan dated June 2008 prepared pursuant to the survey showing the levels at the site and other detail.
11 An affidavit of Roger Kwan sworn 29 August 2008 was read for the Council. Mr Kwan referred to the affidavit of Mr Pelosa sworn 19 September 2006 including annexure JP3 (exhibit B). Mr Kwan attested to visiting the site on 11 October 2007 with another council officer. They walked to the rear of the land and Mr Kwan observed that the area of fill which had been plotted in exhibit B was the same as when Mr Kwan had previously inspected the area on 8 March 2006 and 4 July 2006 other than that it had since become covered with vegetation and grassed. Mr Kwan annexed photographs to his affidavit that he took at the time. Mr Kwan also had a conversation with the Defendant who stated that he would lodge a DA on 12 October 2007. The Defendant asked for the time and place of the court hearing on 15 October 2007. Mr Kwan confirmed that it would be at the Land and Environment Court but said he could not specify the time. At the Defendant's request Mr Kwan gave the Defendant the name and phone number of the Council's solicitors.
12 Mr Kwan visited the site again on 10 April 2008. He attests the site was in the same state as on 11 October 2007. The Defendant told Mr Kwan that he had twice tried to lodge a DA for the landfill but that the Council had refused to accept it because of insufficient information. Mr Kwan asked the Defendant if he had removed any of the landfill since February 2007. The Defendant said he had not. The Defendant stated that he had removed several trucks of fill after being approached by the Council but he could not recall when. The Defendant stated that his DA to build a machine shed in the south eastern corner of the land had been refused because vehicular access to the shed went over the illegal landfill. The Defendant stated that the Council continued to refuse lodgement of a DA for approval of the landfill. Mr Kwan told the Defendant that he was required to engage a professional consultant and engineers in order to lodge the DA and that a private certifier may be qualified to provide all the required documentation. The Defendant stated that he would approach a friend who was a private certifier. Mr Kwan took photographs, three of which are annexed to his affidavit. Mr Kwan states that as at the date of his affidavit no fill had been removed since the consent orders were made on 12 February 2007.
13 An affidavit of John Ritchie, solicitor for the Council, sworn on 2 September 2008 was read for the Council. Mr Ritchie attests to being in Court on 12 February 2007 when the consent orders were made. Mr Ritchie also attended the Court on 15 October 2007 when the Court was informed that the Defendant had not yet lodged a DA and attests that the Defendant did not appear in Court that day. Annexed to Mr Ritchie's affidavit were the following documents:
· Consent orders dated 12 February 2007.
· Letter dated 5 March 2007 from the solicitors for the Council to Shadow Commercial Services requesting personal service on the Defendant of the orders dated 12 February 2007.
· Letter dated 4 June 2007 from the solicitors for the Council to the Defendant noting that no DA had been lodged contrary to the orders of 12 February 2007 and seeking that the Defendant advise of his intentions.
· Letter dated 16 October 2007 from the solicitors for the Council to the General Manager of the Council noting the mention of the matter before Pain J on 15 October 2007. The letter stated that a solicitor (Mr Thompson) informed the Court that nothing had occurred at the site since the orders were made on 12 February 2007. Mr Thompson referred to the inspection of the site on 12 October 2007 by Mr Kwan and photos taken by Mr Kwan were tendered (exhibit E). Mr Thompson also tendered the Council's solicitors' letter to the Defendant dated 4 June 2007 (exhibit C) and the affidavit of service of the orders (exhibit D).
· Letter dated 16 October 2007 from the solicitors for the Council to Shadow Commercial Services requesting personal service of an attached letter on the Defendant. The attached letter dated 16 October 2007 referred to the mention of the matter before the Court on 15 October 2007. The letter stated that the orders were operative and that the Defendant would be in breach of order 1 and in contempt of court until the fill is removed. The letter dated 4 June 2007 from the Council's solicitors to the Defendant and a copy of the orders made 12 February 2007 were purportedly attached.
14 The Council tendered a Notice of Determination dated 5 August 2009 (exhibit G) to refuse the Defendant's DA, described as being for the retention of fill, driveway and associated landscaping. The reasons for the refusal given are insufficient information being provided to the Council to assess the impacts of the proposed development, inconsistency with the Fairfield Local Environmental Plan 1994, inconsistency with the Fairfield Stormwater Drainage Policy, that the site is not suitable for the proposed development and that the development is not in the public interest.
Council's submissions
15 The requirements of Pt 55 of the SCR have been complied with. The evidence speaks for itself in demonstrating that there has been contempt of court by the Defendant in failing to remove the fill as required by order 1. Distinctions between technical contempt and wilful contempt are relevant to penalty only.
16 In response to the Defendant's submissions (see par 19), the Council submits that order 1 made on 12 February 2007 were not uncertain. It was not necessary for exhibit B to be annexed to the order when the plan labelled exhibit B had already been served on the Defendant as an annexure to the affidavit of Mr Pelosa. Exhibit B does satisfactorily specify the fill to be removed. The orders were made by consent of both parties and the Defendant could not have been uncertain as to what order 1 required him to do.
17 An order that the Court is satisfied beyond reasonable doubt that the Defendant breached the order and is in contempt should be made, per Biscoe J in Kelly (No 3) at [101].
Defendant's submissions
18 The Defendant submits that there are three issues relevant to these contempt proceedings. First, that the order was uncertain in its operation by referring to exhibit B. Second, that the Defendant did not deliberately fail to comply with the order and third, that the Defendant has actively but unsuccessfully sought to comply with the order.
(i) order is uncertain on its face
19 The Defendant submits that the order is uncertain on the face of the document and the Court should not punish a person for not carrying out an order which is in ambiguous terms, per Luxmoore J in Iberian Trust Limited v Founders Trust & Investment Co Ltd [1932] 2 KB 87. The plan in exhibit B does not make clear what is required of the Defendant. Exhibit B did not specify the amount of fill which needed to be removed in order to comply with the order 1. It only provided an indication of what needed to be removed. It is irrelevant to certainty that the orders were made by the consent of both parties. Further, exhibit B was not annexed to the orders made by the Court and the only copy of exhibit B was not readily accessible to the Defendant as it was held on the court file.
(ii) no deliberate non compliance
20 A finding that there has been contempt of court by a party to proceedings requires proof of deliberate non-compliance, per Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 370, Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109 and Markisic v Commonwealth of Australia (2007) 69 NSWLR 737 at [64]. No evidence of deliberate non-compliance has been presented by the Council.
(iii) compliance has been attempted
21 Exhibit G, tendered by the Council, demonstrates that the Defendant has taken steps to regularise the work by lodging a DA but this has been unsuccessful because the Council has refused the application. Any breach of order 1 was not deliberate.
Finding
22 I should firstly determine whether the procedural requirements of SCR Pt 55 r 6, r 7, r 8 and r 9 have been complied with. The Council's Notice of Motion for Contempt dated 3 September 2008, the Statement of Charge dated 3 September 2008 and four supporting affidavits which were referred to earlier at par 9-13 were filed on 4 September 2008, as required by r 6 and r 8. Mr Darrell Willenberg attested to serving the Notice of Motion for Contempt, the Statement of Charge and the four supporting affidavits on the Defendant on 6 September 2008, as required by r 9.
23 The Statement of Charge recounts the consent orders made by the Court on 12 February 2007 being to remove from Lot 50 DP 1035646, 5 Washington Way, Cecil Park, the amount of fill indicated by exhibit B, annexure JP3, being plan dated 8 August 2005 prepared by James Pelosa. The Statement of Charge stated that the Defendant had failed to comply with the order and satisfies r 7. The procedural steps taken by the Council are also identified in the affidavit of Mr Ritchie, the Council's solicitor, identified in par 13. The procedural steps required prior to the hearing of the Notice of Motion for Contempt have been complied with in this matter.
24 Contempt of a court order is civil contempt rather than criminal contempt if not contumacious, per Witham v Holloway at 530 which is discussed further at par 39. There is no reference in the Council's pleadings or argument that the motion is pressed on the basis of criminal contempt. I will deal with the matter on the basis of civil contempt. It is necessary that the Council establish proof of the contempt beyond reasonable doubt. That requires proof that order 1 was made, could be complied with and was not complied with.
(i) whether order 1 made by the Court
25 Order 1 was made by the Court on 12 February 2007 and confirmed on 15 October 2007, as is clear from the Court's record. The Defendant was advised of this by the Council's solicitor in November 2007.
(ii) whether order 1 ambiguous for purposes of a contempt charge
26 Considering whether order 1 could be complied with, the Defendant's counsel has submitted that order 1 is ambiguous and does not make clear on its face what is required in order to comply with it. Firstly, he submitted that the plan referred to as exhibit B in the order was not attached to the order. I do not agree that exhibit B had to be attached to the order to render the order clear on its face. The identification of exhibit B would be clear from an inspection of the court file. I do not agree that the court file was inaccessible to the Defendant. He is a party to the proceedings and entitled to inspect the court file and make copies of any documents that he needed to. Further, the Defendant received a copy of exhibit B tendered in the proceedings in February 2007 as it was attached to the affidavit of Mr Pelosa sworn 19 September 2006 and marked JP3. This affidavit was served upon the Defendant on 29 September 2006 as identified in the statutory declaration of Christopher Nolan, licensed commercial agent, dated 26 October 2006.
27 A further argument raised is that the plan which is exhibit B is not clear on its face about what has to be done. The plan includes a number of contour lines on which depths of fill are marked. One contour line on the outer edge is marked "limit of fill". The contour lines of the land before the fill was placed are also identified. The extent of fill is identified on the plan by the contour lines. The copy of the plan that is exhibit B is a black and white photocopy of the original plan. It does require careful reading as a highlighter pen has been used to identify additional contour lines and figures identifying the depth of fill placed on it by Mr Pelosa, some of which are hard to read on the photocopy. They can all be read with a careful reading. To completely understand the plan in exhibit B consideration of the surrounding circumstances is necessary.
28 Order 1 made on 12 February 2007 requires the Defendant to remove the amount of fill indicated in exhibit B. The fill is identified in exhibit B. The plan exhibit B and order 1 do not state the amount of fill that has to be removed. To the extent that there is uncertainty about the amount of fill and the location of the fill that has to be removed, the issue arises of whether surrounding circumstances should be taken into account in determining if the order is clear. The Defendant's counsel relied on Iberian Trust Limited v Founders Trust & Investment Co Ltd to argue that failure to comply with an ambiguous order should not be punished. In Iberian the plaintiff company obtained an order against the defendant company for the return of shares. The defendant failed to comply with the orders and the plaintiff sought enforcement of writs of attachment against the defendant company's directors. Luxmoore J considered that the order did not define the steps which were to be taken by the defendant in order to comply with it. His Honour held at 95 that "if the Court is to punish any one for not carrying out its order the order must in unambiguous terms state what is to be done". His Honour recognised at 95 that a duty to "find out the proper means of obeying the order" rested upon a defendant where an order required the defendant to do something. However in this case his Honour stated at 96 that the terms of the order could not be construed as requiring the defendant to do something.
29 Each case must depend on its own circumstances. In Kirkpatrick v Kotis (2004) 62 NSWLR 567 (referred to in Ritchie's Uniform Civil Procedure NSW, Volume 2 (LexisNexis, 2005) at [SCR Pt 55.8.4B]) the defendant had, according to the plaintiff, acted in breach of consent orders made in the Supreme Court which required the defendant to cease excavation on his land until underpinning work had been undertaken. In terms of the underpinning work, the consent orders referred to an expert report annexed to an affidavit of a structural engineer. The charge of contempt was for excavation works which were carried out before the requisite underpinning. In rejecting the defendant's submission that the consent orders "should be looked at as a freestanding piece of prose, unaffected by any surrounding circumstances, for the purpose of deciding their construction" (at [39]), Campbell J held at [45] that "authority and principle both favour the view that surrounding circumstances can be used to construe a consent order." Referring to, inter alia, Iberian and Australian Consolidated Press v Morgan (1965) 112 CLR 422, Campbell J considered ambiguous orders generally at [55]:
…the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished - if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a "band" can sometimes be a rubber band, or a headband