Fairfield City Council v Adams

Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Burwood Council v Ruan [2008] NSWLEC 167 Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 EPA v Barnes [2006] NSWCCA 246 Fairfield City Council v Adams [2009] NSWLEC 199 CASES CITED: Mosman Municipal Council v Kelly (No 4) [2010] NSWLEC 20 Owners Strata Plan 37762 v Pham and Ors (No 2) [2007] NSWLEC 306 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183

DATES OF HEARING: 8 March 2010 25 March 2010

PLAINTIFF Mr A J J Thompson (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Ritchie & Castellan DEFENDANT Mr S Flanigan (barrister) Pro bono

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40883 of 2006 Fairfield City Council v Adams (No 2)

JUDGMENT 1 Her Honour: I found Mr Adams guilty of contempt of court in Fairfield City Council v Adams [2009] NSWLEC 199 (Adams No 1). The contempt relates to non-compliance with consent orders made by this Court in February 2007 which required the removal of fill on the Defendant's property on which his home is located. I made a finding that the Defendant was in contempt of the court orders. I did not make a finding as to whether the contempt was deliberate. Punishment for contempt is provided for under Pt 55 cl 13 of the Supreme Court Rules 1970 which specifies that punishment may be by way of fine or committal to a correctional centre or both. It is now necessary to determine the appropriate punishment for the Defendant's contempt.

2 The relevant history of the matter is identified at [6] in Adams No 1 including a chronology of the proceedings in this Court. Clarification of some entries is necessary in light of further discussion in these proceedings. Additional relevant matters not referred to in that chronology include a development application (DA) lodged by the Defendant with the Council on 1 June 2009 for the retention of the fill the subject of the consent orders, driveway and associated landscaping. The Council refused that DA on 5 August 2009 and the Defendant lodged a Class 1 appeal in this Court on that day. That appeal was discontinued by the Applicant on 14 December 2009. An amended chronology based on [6] of my previous judgment and including these additional matters is as follows:

21/9/2006 Class 4 proceedings commenced by the Council concerning the placement of fill without development consent 29/9/2006 Service of affidavit of James Pelosa sworn 18/9/2006 on Defendant (statutory declaration of Christopher Nolan dated 26/10/2006) 12/2/2007 Partial hearing before Pain J. Consent orders made without final determination. 25/5/2007 Last day for Defendant to comply with undertaking to lodge development application (DA). 14/6/2007 Letter from solicitors for the Council to Defendant concerning requirement to lodge DA pursuant to consent orders. 15/10/2007 Mention before Pain J, informed no DA lodged. Order 1 in orders made 12/2/2007 operational in absence of development consent. 1/11/2007 Copy of orders made 12/2/2007 served on Defendant pursuant to UCPR Part 40.7 (affidavit of service Daniel Bradley sworn 7/11/2007). 6/9/2008 Notice of motion for contempt, statement of charge and four affidavits served personally on Defendant (affidavit of service Darrell Willenberg sworn 8/9/2008). 19/9/2008 Motion for contempt returnable before Pain J, no appearance by Defendant, listed for hearing 20/10/2008. 2/10/2008 Letter from solicitors for the Council to Defendant re hearing 20/10/2008. 3/10/2008 Copy of letter dated 2/10/2008 served personally on Defendant (statutory declaration of Darrell Willenberg declared 7/10/2008). 20/10/2008 Hearing of contempt motion before Pain J, no appearance of Defendant, affidavits read for Council. 21/10/2008 Hearing of contempt motion continued, Defendant appears unrepresented, matter stood over to allow Defendant to file DA. The Court noted that the Defendant was to immediately lodge a DA including a plan of the area of fill to be retained and a report of A D Envirotech Pty Ltd, the Defendant's consultant, dated 18 July 2007 (tendered by the Defendant at the October 2008 hearing as part of exhibit 3). The Defendant was also to lodge a comprehensive assessment and design by A D Envirotech of testing of fill for asbestos depth and core testing and a statement of environmental effects by a qualified town planner. DA form lodged that day without additional reports. Existing A D Envirotech report lodged. 18/12/2008 DA refused due to lack of supporting information 28/1/2009 Mention before Pain J, matter set down for hearing 19/3/2009. 19/3/2009 Hearing before Pain J, matter stood over for mention 29/4/2009, pro bono barrister retained to assist Defendant in lodging further DA. 29/4/2009 Mention before Pain J, matter stood over for mention 27/5/2009 in anticipation of DA, planner's report and asbestos testing report being lodged. 27/5/2009 Mention before Pain J, no DA lodged, matter set down for hearing 6/8/2009. 1/6/2009 DA lodged by Defendant with Council 5/8/2009 Defendant's DA refused by Council due to lack of supporting information. 6/8/2009 Further hearing on motion for contempt. 20/11/2009 Judgment on finding of contempt 14/12/2009 Class 1 proceedings discontinued 3/2/2010 Matter set down for sentence hearing

3 The Defendant has sworn an affidavit dated 5 March 2010 which was read in these proceedings. This identifies the personal circumstances of the Defendant, that he is married with eight children from the ages of 7 to 20 years all residing at the property where the fill the subject of the consent orders is located. He was bankrupted on 19 February 2010 and his assets, which include the property where his home and the fill are located, are in the hands of a receiver. His difficulties with his childcare business from early in 2008 are identified in his affidavit. At par 24 he stated that he was making efforts to have the fill, found to be contaminated with asbestos in the Geotechnique report filed in the Class 1 proceedings by the Council, removed in the next couple of weeks. In light of that evidence I stood the matter over for two and a half weeks before finalising the sentence in these proceedings.

4 The Defendant was cross-examined by the Council's solicitor about the lack of action taken to comply with the orders in the period 25 May 2007 to 21 October 2008. His evidence was that he did not ignore the orders but that he had a number of other pressing matters to deal with at that time and he was not able to focus on complying with the orders. He also stated that he was concerned that some contaminated fill was on his property which he was not aware of until the Geotechnique report was received. 5 At a subsequent mention of the matter on 25 March 2010 an unsigned report of Mr Peter Froio, a holder of a license authorising him to remove asbestos, was handed up by the Defendant's counsel. The report details very recent services, up to and including 25 March 2010, supplied to the Defendant at his property for the removal of asbestos contaminated fill including notifying WorkCover NSW of the removal of asbestos contaminated fill, arranging for disposal of that fill with NSW Investments Pty Ltd and undertaking the excavation of pier holes to assess asbestos contamination. The assessment found relatively small amounts of asbestos contaminated fill. While sieving of this fill was the preferred method for removing the asbestos recent rain prevented this being done. Areas where contaminated fill was located are being excavated and soil removed for trucking to an approved asbestos disposal location. Photographs of these various activities are attached to the report. A signed copy of the report was provided to the Court on 26 March 2010. 6 The Council has not had the opportunity of confirming whether all the asbestos contaminated fill identified in the Geotechnique report has been removed. The report of Mr Froio refers to ongoing work so that removal was not completed at the time it was prepared. Council's submissions 7 There is a long history of attempts by the Council to have the unauthorised fill removed starting with a conviction in Liverpool Local Court in February 2006 when the Defendant pleaded guilty to failing to comply with an order for its removal. There is nothing in the Defendant's affidavit about any action being taken between 27 May 2007 and 21 October 2008. The Defendant was deliberately ignoring the Court's orders. Once a pro bono barrister was engaged from October 2008 more action, albeit not very effective, has been taken. The Defendant commenced the Class 1 appeal irresponsibly on 5 August 2009 as he clearly did not have the financial resources to obtain the necessary expert report required for those proceedings to be successful. The Council obtained an expert report from Geotechnique at considerable expense which confirmed the presence of asbestos in some of the fill placed on the Defendant's property without development consent. The Defendant took no steps in the proceedings such as filing an expert report.

8 The Council submits that the contempt is deliberate and contumacious in the period May 2007 to October 2008 and that the appropriate punishment is weekend detention for three months. Defendant's submissions 9 The relevant matters to consider are identified in Mosman Municipal Council v Kelly (No 4) [2010] NSWLEC 20 (Kelly No 4) at [6] including the seriousness of the contempt proved, whether the contemnor was aware of the consequences to himself or herself of what he or she did, the reason for the contempt, whether there is contrition, the need for general and personal deterrence and denunciation of the contempt. It is accepted that disobedience of a court order is a serious matter given the importance of the administration of justice. The contempt is not in the face of the court and pertains to the Defendant's own home, factors suggesting it is less serious. The Defendant voluntarily entered into orders on 12 February 2007 which required him to remove the fill placed without development consent. The chronology of events establishes that despite his financial problems the Defendant was attempting to regularise the fill on his property, albeit over a long period.

10 Mr Adam's affidavit explains his difficult personal and financial position which has resulted in his inability to comply with the consent orders. He now has very limited financial means and has been under severe personal stress as a result. There is no evidence that he chose to ignore the Court's orders. Inactivity alone is not sufficient to establish the proposition put by the Council that there is no explanation from the Defendant to explain why he ignored the Court's order. In relation to the Class 1 proceedings, once the Council filed the Geotechnique report which identified areas of fill containing asbestos there was no basis to grant development consent as cl 13 of the Fairfield Local Environmental Plan 1994 (the LEP) prohibits the granting of consent for fill which contains hazardous material. It was appropriate that the proceedings be discontinued in these circumstances. Further inactivity alone does not mean an inference should be drawn of deliberately ignoring the orders. The Defendant's behaviour was not contumacious. 11 The Defendant attests to his contrition in his affidavit. Under the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) at s 21A(3)(i) remorse is a relevant consideration. That the Defendant is bankrupt does not mean that a fine is not an appropriate means of punishment, as an objective in sentencing is to provide general deterrence. That he has very limited means to pay a fine is not a reason why a fine should not be imposed. Weekend detention would be likely to have a significant impact on the Defendant and his dependents.

Was contempt deliberate and contumacious? 12 In Adams No 1 I discussed but did not decide whether there was deliberate contempt on the part of the Defendant as it was unnecessary to do so for the purposes of making a finding of contempt (Adams No 1 at [36]-[44]). As that is a matter relevant to sentencing I will consider that issue now. 13 As considered in many cases, for example Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25], contempt can be described as technical, wilful or contumacious. Technical contempt is where the contempt is "casual, accidental or unintentional". Wilful contempt occurs when there is deliberate disobedience but without the intention of defying the court's authority. Contempt is contumacious if there is an element of deliberate defiance of a court's orders. 14 The Council submits that the history of the proceedings supports a finding of contumacious behaviour by the Defendant, in particular that no action was taken in the period May 2007 to October 2008 to comply with the Court's orders. The Defendant's counsel submits that efforts were made intermittently, albeit over a lengthy period, to try to comply with the orders. The history of the proceedings is identified in par 2 and demonstrates long delay in attempts to comply with the consent orders made on 12 February 2007. The motion for contempt was filed in September 2008 and was mentioned in Court or partially heard on 19 September 2008, 20-21 October 2008, 28 January 2009, 29 April 2009 and 27 May 2009 to provide opportunity to the Defendant to file additional material with the Council in support of a DA. The Defendant lodged two DAs with inadequate documentation in the course of the matter and both were refused by the Council. The matter was also stood over to enable the Defendant's Class 1 appeal to be determined by this Court. That appeal was discontinued when, as submitted by the Council, the confirmation of contamination in part of the fill located on the property meant that development consent could not be granted. 15 That history nevertheless shows that efforts were made by the Defendant to try to regularise the fill through a DA process, however ineffectual much of that effort. The circumstances attested to in the Defendant's affidavit explain why his efforts were spasmodic and not very effective. It is clear that the Defendant had a number of major financial pressures upon him which occupied his attention over many months, including in the period of May 2007 to October 2008 which the Council particularly relies on to support a finding that his behaviour was contumacious. I accept the Defendant's evidence that these events caused him considerable personal stress and that he was distracted from focussing on compliance with the orders made in February 2007. Inactivity in the period May 2007 to October 2008 alone does not support a finding that his contempt was contumacious. His behaviour is best characterised as wilful, not deliberate and contumacious, contrary to the Council's submissions. I consider the Defendant was not deliberately seeking to defy the Court's authority by his lack of action. Appropriate sentence 16 In Adams No 1 I referred to Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 which states at [29]: Once contempt is established, the court has to decide what action it should take, in the light of all the circumstances of the particular case. It should not punish simply because contempt has been established; . . . 17 That contempt of a court order is a serious matter is not in dispute. The need for punishment for contempt in order to uphold the effective administration of the courts is referred to in a number of judgments, for example Pepper J in Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210 at [88]-[90]. In Owners Strata Plan 37762 v Pham and Ors (No 2) [2007] NSWLEC 306 (Pham No 2) I referred to Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 (Maniam [No 2]) at 314 as follows: A conviction of contempt of court is the conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way. . .

18 In Pham No 2 at [20] I set out ten factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 by Dunford J at 185: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. These have also been applied where relevant in Pittwater Council v Brown Brothers at [92] and Kelly (No 4) at [6] amongst other cases. In addition, relevant sentencing considerations under s 21A of the CSP Act should be considered. 19 Taking into account the relevant factors identified in Wood (factors 3, 4 and 6 are not relevant), I have found that the contempt was not "casual, accidental or unintentional" but was wilful as there has been deliberate disobedience of the Court's order over a lengthy period. I do not consider the Defendant acted with the intention of deliberately defying the Court's authority. The Defendant was aware that he had to comply with the Court's orders. 20 The consequence of the contempt is that fill remains on the property without lawful authority which means that the integrity of the planning controls specified under the Environmental Planning and Assessment Act 1979 (the EP&A Act) which require development consent to be obtained before work is undertaken have not been upheld. It is a serious matter if fill is placed without the necessary development consent being first obtained. General deterrence is a highly relevant consideration in the circumstances of this case. Denunciation of the contempt is also important in light of these circumstances. 21 An additional consequence is that part of that fill has been identified in the Geotechnique report filed in the Class 1 proceedings as contaminated with asbestos. Not all the fill placed on the property is identified as contaminated. The fill has been placed on the Defendant's property where he lives with his family. He is also concerned that some of the fill is contaminated as referred to in his affidavit and in his oral evidence. I accept that it was not his intention that contaminated fill be placed on his property. As identified in par 3, the Defendant was attempting to have the contaminated fill removed and the proceedings were stood over for that opportunity to be provided prior to the final determination of sentence. 22 The report of Mr Froio summarised above at par 5 identifies that some efforts have been made to remove some contaminated fill. That work was unfinished at the time the report was prepared. It is unknown whether these efforts will result in all the contaminated fill identified in the Geotechnique report being removed. I accept that a genuine effort has been made by the Defendant to attempt to remove the contaminated fill on his property and I take that into account to a limited extent as relevant to the Defendant's culpability as it demonstrates an attempt to purge his contempt. However, not all the extensive fill the subject of the consent orders requiring its removal has been attempted to be removed so that the Defendant has not complied with the consent orders. 23 None of the aggravating factors relevant to sentencing identified in s 21A(2) of the CSP Act apply.

24 In relation to the Defendant's personal circumstances, he has expressed contrition for the contempt (factor 7 in Wood) and appears to be otherwise of good character (factor 8 in Wood). The sentencing considerations in s 21A(3) of the CSP overlap with these matters in relation to the good character of the Defendant and his expression of contrition, which I have accepted. A further relevant factor under s 21A(3) is that I consider the Defendant is unlikely to reoffend, given his personal circumstances. 25 In terms of the appropriate punishment, it is necessary to impose a penalty which denounces the contempt and takes into account the need for general deterrence. There is no need for specific deterrence in this matter. There is also a need to consider consistency in punishment. A period of imprisonment as sought by the Council, even if suspended, is unnecessarily harsh, particularly as I have found the contempt was wilful but not contumacious. There are few cases where the Court has sentenced a person to a term of imprisonment for contempt and where it has done so the contempt has been markedly more serious than in this matter. A fine is the appropriate penalty in this matter. 26 The limited means of the Defendant to pay a fine is a relevant consideration under the Fines Act 1996, s 6, as held by Pepper J in Pittwater Council at [125]-[126]. I accept that the Defendant is bankrupt and has limited ability to pay a fine but the need for general deterrence suggests that one should be imposed, see the findings of Lloyd J in Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [15]. 27 As to the appropriate fine, evenhandedness in relation to contempt matters is a relevant consideration but ultimately each case must depend on its own facts. In Pham No 2 at [3] I identified a number of cases where a fine had been imposed in contempt cases before the Court. These and other cases were referred to by Biscoe J in Burwood Council v Ruan [2008] NSWLEC 167 at [27]-[28]. These paragraphs were extracted and further cases including Pre-Cast Concrete Solutions were also referred to by Pepper J in Pittwater Council at [128]-[133]. In Ruan at [27] the range of fines for cases of wilful contempt involving environmental harm or the risk of harm was in the vicinity of $50,000 discounted in light of mitigating circumstances. In Pre-Cast Concrete Solutions the Court found the contempt while not contumacious was very serious and imposed a fine of $80,000. In Pittwater Council a fine of $45,000 was imposed in relation to consent orders concerning the use of premises as a waste management facility. These cases, many of which concern commercial operations carried out for profit, are more serious than this matter. 28 In Ruan at [28] cases of wilful contempt involving failure to comply with development consents but not involving environmental harm disclosed a range of $7,500 to $10,000 after discounting for mitigating circumstances. In Pham No 2 I imposed fines ranging from $5,000 to $10,000 in relation to a failure to comply with Court orders requiring removal of a structure. This matter is at the low to medium end of the possible spectrum of seriousness. The Defendant's culpability is relatively low. The level of environmental harm is low to medium given the possible continued presence of contaminated fill and that much of the fill placed without development consent remains. 29 The Council seeks its costs of the proceedings which should be awarded as compensatory of the costs the Council has necessarily had to incur in pursuing these contempt proceedings over a lengthy period, as indicated in the chronology set out in par 2. The Defendant ought pay the Council's costs. Costs will be a further financial burden on the Defendant who has limited financial means, a matter I can take into account in sentencing, see EPA v Barnes [2006] NSWCCA 246. 30 Taking into account the objective and subjective factors outlined above I consider that a penalty of $15,000 is appropriate. Order 31 The Court makes the following orders: 1. The Defendant is convicted of the charge of contempt as particularised in the statement of charge. 2. The Defendant is fined $15,000. 3. The Defendant is ordered to pay the Council's costs of the contempt proceedings up to and including 26 March 2010, as agreed or assessed. 4. The exhibits are to be returned.

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