Fairfield City Council v Camilleri

Fairfield City Council v Camilleri - [2019] NSWLEC 95 - NSWLEC 2018 case summary — Zoe

[3]

The Consent Orders which have been breached

In matter 203179 the following orders were made against both Camilleri and Joseph Borg, father of his partner Diane Borg, and in matter 203222 against Camilleri alone: Matter number 203222 (against Camilleri alone - emphasis added): 1. An Order that the respondent, his servants, agents and contractors cease using the premises at Lot 230A in Deposited Plan 17288, 223 - 235 Burley Road, Horsley Park ("the premises") for the purpose of a waste or resource management facility as defined in Fairfield Local Environmental Plan 2013. 2. An Order that the respondent cease using the premises for the purpose of extensive agriculture, namely the grazing of livestock for commercial purposes, as defined in Fairfield Local Environmental Plan 2013 without first obtaining development consent. 3. An Order that the respondent remove from the premises all waste including building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, refrigerators, hot water systems, timber, metal and plastic items not otherwise included, containers, trucks and trailers which are unregistered, and all livestock within six (6) months of Order. 4. The respondent to pay the applicant's costs of $6,000.00. Matter number 203179 (against Borg and Camilleri - emphasis added): 1. An Order that the respondents, their servants, agents and contractors cease using the premises at Lot 232C in Deposited Plan 17288, 224 - 234 Delaware Road, Horsley Park ("the premises") for the purpose of a waste or resource management facility as defined in Fairfield Local Environmental Plan 2013. 2. An Order that the respondent cease using the premises for the purpose of extensive agriculture, namely the grazing of livestock for commercial purposes, as defined in Fairfield Local Environmental Plan 2013 without first obtaining development consent. 3. An Order that the respondents, their servants, agents and contractors cease using the premises for the purpose of a Transport Depot as defined in Fairfield Local Environmental Plan 2013. 4. An Order that the respondents remove from the premises all waste including building materials, wooden crates and pallets, concrete slabs, bricks, steel mesh, steel frames, metal roofing, metal fencing, metal piping, tyres, baths, refrigerators, sinks, cardboard boxes, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, timber, metal and plastic items not otherwise included, containers, trucks and trailers and all livestock within six (6) months of Order. 5. The respondents to pay the applicant's costs of $6,000.00 within 6 months of Order.
I observe at this point that these orders do not distinguish between items which are located within sheds or other buildings on the relevant property, and items lying on the land itself. Nor do the orders stipulate that the items must be owned by Camilleri (see T25.06.19, p19, LL34-50).
Both sets of Consent Orders concluded with the following "Notice" (some emphasis added): NOTICE: Pursuant to Part 40, Rule 7 of the Uniform Civil Procedure Rules, 2005 You, [Joseph Borg and] Saviour Camilleri, are liable to imprisonment or to sequestration of property if, where these Orders require you to act within a specified time, you refuse or neglect to do the act within that time or, where these orders require you to do an act forthwith, or forthwith upon a specified event, you refuse or neglect to do the act as required or, where these Orders require you to abstain from doing an act, you disobey such restraint.
The period of six months allowed by the orders expired on 7 April 2017, and neither property had been cleared by that date.

[4]

The Contempt Charges

A further six months passed before various contempt charges were laid, on 4 October 2017.
Twelve months later, on 4 October 2018: 1. contempt proceedings against Joseph Borg, in respect of the Delaware Road property, which he owns, were discontinued, on the grounds of his poor health (including dementia); 2. various other charges brought against Camilleri were withdrawn, in light of his pleas of guilty, entered on that day; and 3. Camilleri's pleas of guilty were entered to the following two charges: 2016/203222 You, SAVIOUR CAMILLERI, have failed to comply with the Order of this Honourable Court made on 7 October 2016 in that you have failed to remove from the premises at Lot 230A in Deposited Plan 17288, 223-235 Burley Road, Horsley Park NSW all waste including building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, refrigerators, hot water systems, timber, metal and plastic items not otherwise included, containers, trucks and trailers which are unregistered, and all livestock within six (6) months of the Order. 2016/203179 You, SAVIOUR CAMILLERI, have failed to comply with the Order of this Honourable Court made on 7 October 2016 in that you have failed to remove from the premises at Lot 232C in Deposited Plan 17288, 224-234 Delaware Road, Horsley Park NSW all waste including building materials, wooden crates and pallets, concrete slabs, bricks, steel mesh, steel frames, metal roofing, metal fencing, metal piping, tyres, baths, refrigerators, sinks, cardboard boxes, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, timber, metal and plastic items not otherwise included, containers, trucks and trailers and all livestock within six (6) months from the date of Order.
On 9 October 2018, the sentencing hearing was appointed for 22 November 2018, and it was agreed that evidence adduced on either charge would be also evidence on the other.
Apart from the imposition of (1) appropriate punishment for his contempts, by way of imprisonment and/or fine, and (2) orders for costs, Council also sought, in each case, (3) an order for the sequestration of Camilleri's proprietary interest in the Burley Rd property, which is estimated to be worth at least $900,000, to fund the clean-up of both sites (Uniform Civil Procedure Rules 2005 r. 40.6(2)(a) and (b), and Supreme Court Rules Part 55 cl 13(1) and (3)).
As at the final hearing on 25 June 2019, the Council (additional subs, 21 June 2019, par 15, and Tp70, L50 to p71, L1) was not pressing for the imposition of a custodial sentence, so the final hearing focussed on possible fines, a possible sequestration order to facilitate completion of the clean-up, and the question of Council's costs.

[5]

Relevant Rules

The Supreme Court Rules 1970 ("SCR"), Part 55 cl 13, provides: 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. ... (2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
The Uniform Civil Procedure Rules 2005 ("UCPR"), r. 40.6, provides (some emphasis added): 40.6 Doing or abstaining from doing an act (1) This rule applies in the following circumstances: (a) if: (i) a judgment requires a person to do an act within a time specified in the judgment, and (ii) the person fails to do the act within that time or, if that time is extended or abridged, within that time as extended or abridged, (b) if: (i) a judgment requires a person to do an act forthwith, or forthwith on a specified event, and (ii) the person fails to do the act as so required, (c) if: (i) a judgment requires a person to abstain from doing an act, and (ii) the person disobeys the judgment, but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court). (2) In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means: (a) committal of the person bound by the judgment, (b) sequestration of the property of the person bound by the judgment, (c) if the person bound by the judgment is a corporation: (i) committal of any officer of the corporation, and (ii) sequestration of the property of any officer of the corporation.
UCPR 40.7, inter alia, provides: 40.7 Service of copy of judgment before committal or sequestration (1) A judgment is not enforceable by committal or sequestration unless: (a) a sealed copy of the judgment is served personally on the person bound by the judgment, and (b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged. ... (3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property: ... (4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment: (a) by being present when the judgment is directed to be entered, or (b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule. (5) The court may dispense with service under this rule. (6) This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena.

[6]

Sentencing for Contempt

The necessary disobedience of Court orders, which grounds a charge of contempt, must be proven beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3.
In Wood v Staunton (No 5) (1996) 86 A Crim R 183, at 185, Dunford J distilled, from the major authorities as they then stood, the following ten "relevant matters for consideration" when sentencing for contempt: 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. (See also Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; 125 A Crim R 473; [2001] NSWSC 969; Commissioner for Fair Trading v Partridge [2006] NSWSC 478; and Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210; and Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88.)
Factor 1, "seriousness", raises the issue of characterising, or grading, proven contempts as "contumacious", "wilful", or "technical".
This characterisation task was discussed in detail by Biscoe J in both Burwood Council v Ruan ("Ruan") [2008] NSWLEC 167, at [7]-[14], and Mosman Municipal Council v Kelly (No 3) ("Kelly (No 3)") (2009) 167 LGERA 91; [2009] NSWLEC 92, at [72]-[85].
I respectfully adopt and apply, without repeating it, His Honour's analysis.
I also adopt the summary formulated by Molesworth AJ in Blacktown City Council v Everson ("Everson") [2019] NSWLEC 4, at [11]: Contempt can be characterised as technical, wilful, or contumacious. Technical contempt is where breach of the court order is casual, accidental, or unintentional. ... Wilful contempt is where there is deliberate disobedience (that is, the disobedience is not casual, accidental, or unintentional) but without the intention of defying the Court's authority. Contumacious contempt is where there is a deliberate intent to defy the Court's authority. ...
"Gradation" of contempt becomes relevant only on penalty, i.e. once the contempt is found proven: Kelly (No 3), at [65] and [71].
Counsel for Camilleri concedes in the present case (subs 24 June 2019, par 14) that the contempts committed have been, at all stages, "willing", and not merely "technical", but Council submits that they became "contumacious" at least by 28 November 2018, in that they are serious acts of "deliberate defiance of judicial authority".
Counsel for Camilleri concedes also ("outline subs", 27 November 2018, pars 20-22, and subs 24 June 2019, pars 24-26) that the contempt in this case is "objectively serious", and has caused at least potential environmental harm. Harm was at the heart of the Class 4 proceedings, and further harm is said to result from disobedience of the orders made in them. See Hawkesbury City Council v Kara-Ali (No 3) ("Kara-Ali No 3") [2019] NSWLEC 55, at [153]-[157].
The underlying purpose of the exercise of the power to punish contempt is to protect the effective administration of justice, by demonstrating that the Court's orders will be enforced. In a sense it is different from sentencing for environment offences generally. The issue is not only the harm to the environment, as strictly understood, that might be caused by the offence, but also the harm caused by the failure to obey the Court's orders. The Court needs to send a message that disobedience of the Court's orders will not be taken lightly. The punishment must show the gravity of any such disobedience.
When dealing with Class 5 prosecutions, the Court often has recourse to the provisions of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"), especially ss 3A and 21A.
In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340, the Court of Appeal held that those statutory provisions do not apply to contempt sentencing, but the Court should apply "analogous principles".
The CSP Act (s 3A) helpfully notes that the purposes of sentencing are (emphasis added): (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
In terms of the matters listed in s 21A, aggravating factors must be proven by the Prosecutor beyond reasonable doubt, and mitigating factors proven by the Defence on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at [27]; and R v Wickham [2004] NSWCCA 193, at [27].
Determination of the appropriate penalty for any offence requires an "instinctive synthesis" of the objective and subjective sentencing factors involved: Markarian v the Queen ("Markarian") (2005) 228 CLR 357. See also Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44, at [83]-[85].

[7]

Sequestration Orders

The remedy of sequestration is very rarely used these days in the enforcement of judgments and orders of courts, and I know of only one case in the life of this Court: Liverpool City Council v Baric ("Baric") [1990] NSWLEC 11 (Cripps J).
I am familiar with judgments given elsewhere on the use of sequestration: e.g. by Bowen CJ in the Federal Court, in Mudginberri Station Pty Ltd v Australasian Meat Industry Employees Union ("Mudginberri") (1985) 61 ALR 291; and by Young J in the Supreme court, in Duncan-Strelec v Tate ("Tate") [2009] NSWSC 112.
Also, I have recently found a 2017 decision by Campbell J in the Supreme Court, TJ and RF Fordham Pty Ltd v Starhill Property Group Pty Ltd [2017] NSWSC 240, but, unlike the other three cases, that was not a contempt case.
The most relevant authority for present purposes is Baric, a case which, like the present case, involved contempt, evasion, procrastination, and wilful defiance. I find Cripps J's approach in that case very persuasive, and I am fortified in adopting it here by the reasoning of Young J and Bowen CJ, in Tate and Mudginberri, respectively.
Sequestration, as noted in the cases, is a rather draconian measure, adopted usually only as a "last resort" - it should not be ordered, if at all, until findings are made in respect of the actual contempt charges, and other alternative remedies have failed (see, e.g., my discussion with counsel at T18.04.19 p5, LL40-49).
Mr Bolger submits (T25.06.19, p78, LL21-33) that sequestration is designed not to punish, but to secure compliance. However, in the extraordinary state of affairs now reached in the present case, I believe it must be seen as a possible part of any sentencing package.
Should sequestration be ordered, it has been established by the later cases that the Court ought appoint two sequestrators, usually drawn from the insolvency profession. There appears to be, historically, no established role for the Sheriff or the Public Trustee.
It becomes the responsibility of the appointed sequestrators to "receive and manage" the Defendant's property, and, in a case like the present, to effectively purge the contempt on his behalf, by taking over the arrangement of the clean-up work still required (T25.06.19, p78, LL46-47), even though it remains the Defendant's responsibility (p79, LL1-8, and LL27-30). They need liberty to apply to the court for any facultative orders they may require.
In the present case, I required the Council, when it came to press the Court to order sequestration, to submit two sequestrator nominations, and a form of writ, for the Court's approval.

[8]

Camilleri and the Borgs - Some Background

Camilleri (DOB 30 November 1969 - Australian, of Maltese descent) has owned the property at 223-235 Burley Road (matter 2016/203222) since 1999, and it appears to be about 7.5 acres in area, and unencumbered.
He lives on the other property, at 224-234 Delaware Road (matter 2016/203179), with his long-time partner, Diane Borg (hereafter "Diane" - DOB 5 July 1972), and her elderly parents, Joe (aged about 90) and Mary (aged about 85). It is said to be approximately 3.75 acres in area.
Camilleri regularly demonstrated a reluctance to come to Court, or otherwise face up to the serious situation in which he found himself, and he appeared on the appointed hearing date, 22 November 2018, only when formally directed, through his counsel, to do so (T22.11.18 p12). (He again failed to attend on time, for example, when the matter came back before the Court on 19 February 2019, but he was present as the Court resumed on 13 March 2019, and generally since.) Each time he gave oral evidence, his presentation was more than defensive: indeed it was quite belligerent.
When contractors arrived at the land on 10 April 2019, pursuant to Orders of the Court, Camilleri was accused of barricading their entry (denied by Diane - see T25.06.19, p54, LL14-31). Police were called, and took him into custody. On 6 June 2019, Local Court Magistrate Michael Price dismissed charges of "wilfully obstruct officer" and "escape police custody", subject to Camilleri undertaking a six month psychological programme, "targeting alcohol dependence, Hoarding Disorder, and Depressive Disorder" (Order at fols 39-40 of Diane's affidavit of 21 June 2019, and Treatment plan at fols 52-54).
Before this Court there are two psychological assessments of Camilleri, by clinical psychologist, Michelle Fisher - the first dated 16 October 2018 (Exhibit C1), and an updated one dated 21 May 2019 (in Diane's affidavits of 21 June 2019, at pages 41 to 46), prepared for his Local Court appearance.
Those psychologist's reports suggest the need for an independent "third party administrator" to be put in charge of the clean-up.
During the November 2018 hearing, Diane put herself forward to manage that process. She has accounting and administrative skills, and has been in her relationship with Camilleri for nearly 30 years. In at least their financial affairs, she "runs everything" (T25.06.19, p30, L40), because he knows "nothing about paperwork" (p31, L21. See also p39, L21).
Camilleri's lawyers have clearly relied heavily on Diane to obtain their instructions; Council officers appear to have been able to deal with her very effectively; and she joined in an undertaking to the Court to advance the clean-up ([64] below).
However, the responsibility Diane has shouldered in this case has clearly taken a serious toll on her health (see [143] below).
Fisher opined that Camilleri suffers - and has suffered since at least 2016 - from "hoarder disorder", and "persistent depressive disorder ("Dysthymia") with anxious distress".
She found him to be of average general intelligence, but with little education, low literacy, impaired judgment, and poor "executive functioning". She interpreted his test results as "strongly" indicating "emotional and behavioural problems", and found his alcohol habit to be "high risk". He has developed "clinically significant", even "severe", symptoms of depression, anxiety and stress", and shows some risk of suicide. His condition had clearly deteriorated in the period between her two assessments.
Diane told the psychologist, before her first report, that Camilleri's mental state has worsened over recent years, and that he became "angry and distressed" when she sought to intervene to deal with the clutter on the two properties. I was particularly troubled by Fisher's remarks (Exhibit C1, fol 12/105, par 25), that Diane: ... fears that the Council may take over the disposal of all property without any recompense. She believes if this were to happen she believes (sic) Mr. Camilleri may well suicide.
In the later report, Fisher added (Diane fols 45-46): His behaviour is consistent with his diagnoses of Hoarding Disorder and Persistent Depressive Disorder with Anxious Distress. He showed difficulty parting with his possessions on the property regardless of their actual value. The extent of his difficulty and impaired judgement is indicated by the lengths he went to, to evade the police (police pursuit and wrapping himself around a tree). In Section 29, of my previous report I indicated that I believed Mr. Camilleri did not have the capacity to comply with Court Orders and his behaviour and arrest on 10/4/19 have shown this to be the case. This is due to his mental state associated with Hoarding Disorder, Persistent Depressive Disorder and lack of executive capacity. Conclusion In conclusion, there is considerable evidence from this report and my preceding report that Mr. Camilleri suffers from a mental health disorder. He meets the diagnostic criterion according to Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) for Hoarding Disorder and Persistent Depressive Disorder with Anxious Distress currently and at the time of the alleged offences on 13 March 2019. As such he is eligible to make an application under Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), that he is suffering from a Mental Illness but is not a "mentally ill person" for the purposes of Chapter 3 of the Mental Health Act 2007(NSW).
Magistrate Price relied on that later Fisher report when dealing with Camilleri on 6 June 2019, and requiring him to enter into his mental health plan.

[10]

The 22-29 November 2018 hearing

The 22 November 2018 hearing continued on 27, 28 and 29 November 2018, and culminated, on 29 November 2018, in the giving, by both Camilleri and Diane, of an undertaking to the Court, in respect of both matters, in the following terms (Exhibit F10): 1 We, Saviour Camilleri and Diane Francis Borg, jointly and severally, undertake to comply with order 3 in proceedings 2016/00203222 (the Burley Road proceedings) by 11 January 2019 being to remove from the property all waste including building materials, wooden crates and pallets, concrete slabs, bricks, steel mesh, steel frames, metal roofing, metal fencing, metal piping, tyres, baths, refrigerators, sinks, cardboard boxes, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, timber, metal and plastic items not otherwise included, containers, trucks and trailers and all livestock. 2 We, Saviour Camilleri and Diane Francis Borg, jointly and severally, undertake to comply with order 4 made in proceedings 2016/00203179 (the Delaware Road proceedings) by 11 February 2019 being to remove from the property all waste including building materials, wooden crates and pallets, concrete slabs, bricks, steel mesh, steel frames, metal roofing, metal fencing, metal piping, tyres, baths, refrigerators, sinks, cardboard boxes, metal drums, plastic pipes, chain wire fencing, rusted reinforcement, timber, metal and plastic items not otherwise included, containers, trucks and trailers and all livestock. 3 We, Saviour Camilleri and Diane Francis Borg, jointly and severally, undertake to engage Bassett Demolitions to assist in complying with the Undertakings provided in paragraphs 1 and 2 in accordance with the quotations from Bassett Demolitions dated 24 November 2018, attached and marked "A". 4 We, Saviour Camilleri and Diane Francis Borg, jointly and severally, undertake to pay into the trust account of John Fasha, solicitor, Fairfield, the following amounts and authorise John Fasha, solicitor, to use these moneys to pay Bassett Demolitions for work done in accordance with its quotations dated 24 November 2018; Payments to be made no later than: 5 December 2018: $25,000.00 31 December 2018: $25,000.00 5 February 2019: $40,000.00 TOTAL $90,000.00

[12]

February 2019

The alleged failure of Camilleri to honour the 29 November 2018 undertaking led to a Notice of Motion ("NOM") by Council, filed on 15 February 2019, seeking the following relief against Camilleri (but not Diane), in addition to that sought in the primary contempt proceedings: 1. A Declaration that the Respondent, Saviour Camilleri has failed to comply with his undertaking to the Court given on 29 November 2018. 2. That Klesteel Pty Limited, trading as Bassett Demolitions, remove all materials and waste from the property at 224 - 234 Delaware Road, Horsley Park NSW 2175, ("the property"), in accordance with the terms of its Quotation dated 24 November 2018. 3. That the Respondent, Saviour Camilleri be restrained from carrying out any work to remove any materials or waste from the property at 224 - 234 Delaware Road, Horsley Park NSW 2175 for a period of one (1) month commencing, Monday, 18 March 2019. 4. That the Respondent, Saviour Camilleri be restrained from doing anything or taking any action to interfere with the removal of materials and waste from the property by Klesteel Pty Limited, trading as Bassett Demolitions, during the period referred to in paragraph 3 above. 5. That Mr John Fasha, solicitor, be authorised to pay Klesteel Pty Limited from funds held in trust on account of Saviour Camilleri and Diane Borg upon completion of the work done by Klesteel Pty Limited, trading as Bassett Demolitions as referred to in paragraph 2 above to the satisfaction of Fairfield City Council.
During the appointed mention on 19 February 2019, Mr A J J Thompson, for the Council, told the Court that undertakings 1 to 3 ([64] above) had not been complied with, and that only the payments due on 5 and 31 December 2018 (par 4) had been made. An affidavit sworn by Camilleri's solicitor, John Fasha, on 19 February 2019, and read by his counsel, Mr C Bolger, on that date, confirmed those payments, totalling $50,000.
Council has elected not to lay any further contempt charges in respect of the non-performance of the undertaking by Camilleri and Diane. Instead, Council elected to press for the sequestration order which had been sought in the contempt proceedings ([20] above).
Council took the position that the preferable course was for the $50,000, set aside in accordance with the undertaking, to be applied to the clean-up of Delaware Road, and for the clean-up of Burley Road to be funded out of the proceeds of that property's sequestration (T19.02.19 p2, LL35-45).
With that course in mind, Mr Thompson sought, on 19 February 2019: 1. An early date for the resumption of the sentencing/sequestration hearing; and 2. The setting down of the NOM of 15 February 2019 for hearing and determination at the same time.
Mr Bolger did not oppose that course, and 13 March 2019 was selected.

[13]

13 March 2019

When the Court resumed on 13 March 2019, the Council tendered a Statement of Agreed Facts ("SAF" - Exhibit F11) in each matter, relevantly in the following terms: 1. On or about 29 November 2018, the respondent, Saviour Camilleri, gave an undertaking to this honourable Court. A copy of the undertaking is annexed and marked "SCA". ... 3. In accordance with paragraph 4 of the Undertaking the respondent agrees that $25,000.00 was paid into the trust account of John Fasha, solicitor in or about 5 December 2018 and 2 January 2019, total $50,000.00. 4. The respondent admits that he has not paid the sum of $40,000 into the trust account of John Fasha, solicitor, as undertaken by him in paragraph 4 of the undertaking.
Mr Fasha gave short oral evidence regarding his discussions with Bassett regarding his quotations, his availability to do the necessary work, and how long he might take to do it.
Mr Bolger filed in Court a NOM, dated 13 March 2019, seeking extensions of the compliance times in the undertaking, and the discharge of Camilleri and Diane from compliance with paragraph 4.
Before that NOM could be considered, counsel for the parties agreed upon the following Short Minutes of Order, reflecting the 15 February 2019 NOM, to deal with the clean-up of the Delaware Road property: 1 Kleesteel (sic) Pty Ltd t/as Bassett Demolitions, is to remove all materials and waste from the property at 224 -235 Delaware Road, Horsley Park NSW 2175 (the "Delaware Road Property") in accordance with the Quote attached marked "A". 2 That the Respondent, Saviour Camilleri be restrained from carrying out any work to remove any materials or waste from the Delaware Road Property for a period of one (1) month commencing, Tuesday, 2 April 2019. 3 That the Respondent, Saviour Camilleri be restrained from doing anything or taking any action to interfere with the removal of materials and waste from the Delaware Road Property during the period referred to in paragraph 2 above. 4 That Mr John Fasha, solicitor, be authorised to pay Klesteel Pty Limited from funds held in trust on account of Saviour Camilleri and Diane Borg upon completion of the work done by Klesteel Pty Limited, trading as Bassett Demolitions as referred to in paragraph 1 above to the satisfaction of Fairfield City Council. 5 Liberty to restore on three (3) days' notice.
Mr Thompson then read affidavits sworn by Council officers Glen Bruce and Frank Bono, variously, on 14 February 2019, 7 March 2019, and 12 March 2019, dealing with inspections made on 14 January, and on 12 and 28 February 2019, and with discussions with Camilleri, Diane, and Bassett.
Photographs taken on 14 January 2019 (Burley Road), 12 February 2019 (Delaware Road), and 28 February 2019 (by Bono, of both properties) were annexed.
Late on 12 March 2019, Diane had sworn an affidavit, and Mr Fasha had filed it. Mr Bolger placed before the Court a folder of exhibits to it.
Diane's affidavit of 12 March 2019 was not formally read, as the Council had lengthy objections to it. One of its purposes was to support the NOM for extension of compliance times (by 3 more weeks for Burley and 8 for Delaware, subject to weather). Counsel agreed that I should examine its contents, and the folder of exhibits (see T13.03.19 p2, L1; p23, LL29-49; p24, L16-p26, L16, especially p25, LL45-46).
The proceedings were adjourned for mention on 18 April 2019.

[14]

1-2 April 2019

On 1 April 2019, Camilleri's solicitor, John Fasha, sought by email to the Court: "... an urgent re-listing of this matter to request a variation of the orders due to wet weather conditions and a dispute as to the storage of our client's items on site. The reason for the urgency is because our client has been notified that Bassett Demolitions will commence the removal of materials and waste in the morning of 3 April 2019."
I relisted the matter at 2pm on Tuesday, 2 April 2019.
Regrettably, neither Mr Bolger nor Mr Thompson could attend, but Council was represented by Mr J Ritchie, solicitor, and Camilleri and Diane by Mr B Jones of counsel, instructed by Mr Fasha.
I allowed Mr Jones to file in Court a NOM, dated 2 April 2019, seeking an extension of time - effectively, as Mr Ritchie said, seeking "a rewriting of the orders" made on 13 March.
The NOM was supported by affidavits from Diane and Mr Fasha, dated 2 April 2019.
The extension sought (for Order 2 of 13 March) was three weeks (beyond Tuesday, 2 April 2019).
It was clear, from the affidavits filed in Court on 2 April 2019, that Camilleri had not proceeded, after 13 March 2019, as the Court had envisaged that he would.
Clearly the arrangement was that Camilleri was to remove from the two properties any items he wished to retain from among the material Bassett would otherwise clear.
Such items were to be removed before Bassett commenced work, which Council expected to be on 3 April 2019. Bassett's work was expected to take two weeks.
Instead, Camilleri had been clearing material himself (see T02.04.19 p6, LL26-38; Diane par 5, and see her photos of 1 April 2019, at fols 6 to 13 (T02.04.19 p8, LL46-49), and invoices etc. at fols 14 to 18).
He wanted the material he is to retain (listed in Diane par 7) to be fenced off in an enclosure within the property.
Diane deposed (par 3) that that was their shared understanding of the orders (see also her then not-read affidavit of 12 March 2019 pars 15, 21 to 24, and 28).
Bassett had apparently agreed to such a "fencing off" arrangement, but Council most certainly had not (Fasha fol 17, par 1).
From the Court's point of view, I noted (at T02.04.19 p9, LL34-44): HIS HONOUR: There was never any suggestion of a cordoning off of any area. RITCHIE: No. And the idea to have-- HIS HONOUR: As I understood it the idea was-- RITCHIE: Take your stuff off and we'll remove-- HIS HONOUR: --get the stuff off one property, if you want to keep it, put it on somewhere else.
Camilleri's side argued, in a letter dated 28 March 2019 (Fasha folio 14), that wet weather after 13 March 2019 indicated that the time in Order 2 should be extended by one week to 9 April.
Again Council did not agree (Fasha fol 17, par 2).
The 2 April 2019 NOM also sought (draft Order 4): The Respondent, Saviour Camilleri be permitted to store items on site within a fenced off section within 224-235 Delaware Road, Horsley Park NSW 2175 and those particular items are not to be removed by Kleesteel (sic) Pty Ltd t/as Bassett Demolitions until agreement between the parties or such further Court order.
I was told on 2 April 2019 that Bassett was "prepared to hold off for one week", not for the three weeks sought in the NOM, but Council was not prepared to defer Bassett's operation beyond 2 April 2019 (T02.04.19 p8, LL1-3).
I declined to make draft Order 4 ([99] above), and I extended the time in March Order 2 by only one week.
I ordered the Respondent to pay Council's costs of the day on an indemnity basis.

[15]

18 April 2019

As earlier arranged, the matter returned to the Court on 18 April 2019.
Mr Thompson read and relied upon an affidavit from Bruce, sworn on 17 April 2019, and indicated orally to the Court that the clean-up of the Delaware Rd property was "substantially completed" on 15 April 2019, by Bassett, but with some assistance from two of Camilleri's brothers (Daniel and Paul, particularly Daniel).
However, some rubbish remained inside various sheds not covered by Bassett's quotation. The Council officers attending on site had discussions with Diane, resulting in agreement, under which "some of the stuff was left there ... on the understanding that it will be removed in the not too distant future". Inside the sheds there were also "some quite good cars ... covered in rubbish" (see T18.04.19 p1, LL28-39, and Bruce 17.04.19 pars 13 to 17).
Mr Thompson told the Court that Camilleri's brothers were understood to be "now interested in assisting the clean-up [of] Burley Road" (Tp1, LL42-43).
Bruce primarily deposed (pars 2 to 12) to Camilleri's attempts to obstruct the clean-up, contrary to my very specific Order 3, made on 13 March 2019 ([77] above).
Those attempts resulted in the involvement of Fairfield Police, which led to Camilleri's being arrested and charged. He was ordered to appear in Fairfield Local Court on 30 May 2019 for what Mr Thompson expected would be an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (see [52] above).
Council's position, as at 18 April 2019, was that Camilleri remained in breach of Moore J's orders of 7 October 2016, to which he had consented, in relation to both properties, and that the Court should impose a penalty (Tp5, LL47-49).
However, Council's main objective was to see both properties cleaned up.
Mr Thompson tendered photos taken of each site on 17 April 2019 (respectively Exhibits F12 and F13).
On these sites there remained many vehicles, items of machinery, and other objects which could well be "saleable", as Camilleri has contended, along with livestock of possible value, and Mr Bolger told the Court that the sale options were being actively pursued (Tp8 LL34-35).
Counsel for the parties agreed upon Short Minutes of Order - and the Court duly made orders - in the following terms: 1 Leave for the Applicant to file a Notice of Motion seeking orders for sequestration of the Second Respondent's estate. 2 The Applicant to file the Notice of Motion by 10 May 2019. 3 The Notice of Motion be listed for directions on 23 May 2019 at 9.30am. 4 Liberty to restore on three (3) days' notice.
Mr Thompson was hopeful "that it may not be necessary to pursue" sequestration (Tp2, LL25-26), but it remained "Council's position" (LL26-27).
He continued (LL27-32): Council is also going to request the Court when the time comes for a penalty, a substantial penalty, bearing in mind the contempt has continued for a considerable amount of time and bearing in mind that last week, Mr Camilleri was not co-operative and indeed breached the orders that were made on 13 March 2019 by trying to block Bassett Demolitions from carrying out the clean-up of Delaware Road ...
Mr Bolger expressed concern that, if the events of April 2019 were to be the subject of any Council submission in this Court for the imposition of a penalty (outside the issue of sequestration), "the issue of double jeopardy may well arise" (Tp7, LL26-33), because the Defendant was before the local court specifically on account of those events.

[17]

The Current Situation

On 6 June 2019, Camilleri filed an affidavit in each matter, in identical terms.
On 18 June 2019, Council issued to Camilleri, in matter 203222, a Notice to Produce "Copies of Statements for Banks Accounts including term deposits held in the name of Saviour Camilleri, either solely or jointly, from 1 September 2018 to 31 May 2019". (On 9 November 2018, Camilleri had produced financial documents for earlier years in response to a Notice to Produce dated 8 November 2018, and relevant material became Exhibit F8.)
Also on 18 June 2019, Council filed in each matter an affidavit from Mr Bruce dated 31 May 2019 (copies of which had been filed on that date). Those affidavits recorded the results of inspections held on 29 May 2019, and included photographs taken on that date.
Council also filed in each case a chronology, updating those included in the Court Books filed on 16 November 2018.
When the hearing resumed on 25 June 2019, Mr Thompson read, in Council's case, Mr Bruce's affidavit of 17 April 2019 (again), and both of his 31 May 2019 affidavits.
He also read the affidavits of 9 and 10 May 2019 from Hamilton and Taylor ([18] above), and tendered the financial material the Defendant had produced that day(Exhibit F15), and the 2002 aerial photograph of the Burley Road site (Exhibit F16), to which I have earlier referred ([8] above).
Mr Bolger read, in the Defendant's case, both of Camilleri's affidavits of 6 June 2019, two affidavits from Diane dated 21 June 2019, her affidavit of 12 March 2019 ([80]-[81] above), and an affidavit from the Defendant's solicitor, John Fasha, sworn 25 June 2019.
The Defendant deposed (par 9) to having largely ignored his business since October 2018, allegedly to concentrate on cleaning up the subject lands, and, therefore, to having no real income or cash flow, and no ability to borrow.
He admitted again in this most recent material that he has continued to be in breach of the 2016 orders, and has failed to purge his contempt.
He also deposed (par 17): I have been working towards purging my contempt and complying with the Court Orders of 7 October 2016 and my Undertaking of 29 November 2018. If I have not completed the work by the next court date I consent or agree to Borg Civil completing the work at the Burley Road Property. Should Borg Civil be permitted to complete the work at Burley Road, I request that the amounts retained in my Solicitor's trust account be paid to Borg Civil on the completion of that work and after the presentation of a tax invoice for the work.
Fasha deposed to having received that day a sum of $40,000, apparently lent to the Defendant by his mother (T25.06.19 p14, LL16-21, p49, LL6-10, and p52, LL1-16). Fasha had credited those funds to Camilleri in his trust account, "in respect of the payment to contractors, if necessary, to complete the works required pursuant to the Court Orders made on 7 October 2016". Fasha confirmed that he now holds in trust for Camilleri a total of $47,320.
I note here that the last instalment under the November 2018 undertaking (Exhibit F10), $40,000, had been due "no later than ... 5 February 2019".
Diane's affidavits of 21 June 2019 included photographs which she had taken at 10.30am on that date.
She also described (1) arrangements she said she had agreed upon with Bruce, regarding some items remaining on the land (par 12 of each affidavit), and (2) her ongoing negotiations with Jerry Zoric of "Borg Civil", regarding further clearing work required on the subject lands.
Such engagement of Borg Civil had been mooted on 23 May 2019, after it had done work on the land 16-17 May 2019, but had not been achieved by 25 June 2019.
Issues remain concerning what belongs to whom, what should be allowed to remain on the lands, and when sales of some trucks and other valuable items, and repairs to some vehicles, bogged and/or broken down, will be completed.
The evidence is not clear as to whether livestock also remain on the lands, contrary to law, but Diane hopes an agricultural use will eventually be approved, and that some equipment and materials still on the land can be applied to that use (T25.06.19, p51, LL1-18).
Mr Bolger's position is (T25.06.19, p13, LL36-38) that "... there has been effectively substantial compliance and, absent ... further [Council] inspection, it's not 100% clear what has to be removed, and what may remain outside those orders".
Diane also annexed various medical documents, including (a) the updated report from Fisher on the Defendant ([53] and [61] above), prepared for his appearance on 6 June 2019 at Fairfield Local Court, and (b) reports which supported her assertion (in par 24 of each affidavit) that: These proceedings have seriously affected my mental health and I am exhausted from trying to manage the clean up. I am suffering from anxiety and depression and I am not sleeping and have panic attacks over losing the property and my fears as to what Saviour might do to himself if he loses the Burley Road Property. I have also struggled in managing Saviour's mental health and our relationship during these proceedings. I am obtaining treatment from my general practitioner and I have been provided a mental health treatment plan that includes Mindways Psychology at Wetherill Park. I have been prescribed anti-depressant medication ...
Bruce, the Defendant, and Diane all gave further oral evidence, and were cross-examined, again, on 25 June, before both counsel addressed several sets of written submissions they had filed over time.

[18]

The Final Contest

There is little conflict between counsel regarding the law and relevant principles.
Mr Bolger conceded that Camilleri should be convicted of "wilful" contempt (T25.06.19, p73, LL20-24), fined, and ordered to pay costs, but he resisted the sequestration order pressed by the Council.
Mr Thompson submitted that the many opportunities provided over time to Camilleri (supported by Diane) to rectify the problems Council sees with the two areas of land, and so to purge his admitted contempt of the Court's orders, have been wasted by him, and, as he has proven unable to do what is required, the Court must step in, and not only punish him, but also appoint sequestrators to ensure the clean-up is completed - it's a "clean way of getting finality" (T25.06.19, p83, LL15-16).
Mr Bolger submitted that, as the Delaware Road property has been "substantially cleared", and there is only "minimal" material left on the Burley Road property (p67, L42; p74, LL7-9; p76, LL44-45; and p83, L20), the Court should impose a fine, including a periodic fine, to ensure that the clean-ups are concluded, and rely on Diane to work with contractors and family members to "finish the job" (my words, but see her evidence at Tpp47-53, Tp78, LL33-35) - there is no utility, and "prohibitive" expense, involved in sequestration (Tp12, LL31-32, and p79, LL17-19).
Mr Thompson submitted, in reply, that the sequestration would prove "short and effective", as there was now in Camilleri's estate, apart from valuable land, sufficient funds held by Mr Fasha to cover the likely costs of the work required (Tp71, L17). He said (at Tp82, LL19-22): ... What you're being asked to do is defer, defer, defer as you've been asked to do right through. You've seen the outcome of deferring matters, it is never completed by the respondent, it just doesn't happen.
Camilleri did not even acknowledge, on 25 June 2019, that there was any more to be done (see Tp24, LL34-36), while Diane, remaining co-operative with Council, was reaching agreements with Bruce about items which need not be removed (see Tpp18-27, and 46).
Camilleri's financial affairs are a mess, despite Diane's best efforts (Tp71, LL43-44), and he also will have a major liability in respect of Council's legal costs (possibly up to $180,000 - Tp72, L46). These matters must be weighed in deciding upon any fines to impose upon him.

[19]

Consideration

While I am prepared to accept Camilleri's assertion that, at least in very recent times, "we have been working day and night [on] the farm trying to do what you need done" (T25.06.19, p31, LL20-21), and, while I also accept Diane's evidence that a great deal more material was removed between her photographs of 21 June 2019 and her Court appearance and oral evidence on 25 June 2019 (Tp44, LL54-50, and p45, L18), I have no remaining confidence that the Defendant can be relied upon to complete the job, even with the extraordinary support shown by Diane, and recent support provided also by his brothers.
I have concluded that Mr Thompson is correct when he urges the Court to "get it over and done with" (T25.06.19, p71, LL31-32), in the interests of all concerned, not least the mental health of both the Defendant and his partner. As Mr Thompson noted, Diane "has suffered enough" (Tp71, LL46-47).
The Defendant has resisted, or at least "held out", for too long, and the Court must, indeed, bring to an end this debacle entirely of his own making.
He failed to honour consent orders, and mediated agreements, between 7 October 2016 and May 2018, and then, only partially, and on his own terms, did he comply with his undertaking to the Court, given on 29 November 2018, before resisting its implementation, by his own contractor, on 10 April 2019. He also failed to honour orders to which he consented on 13 March 2019, as varied in his favour on 2 April 2019.
His obvious mental deterioration over time leads me, however, not to accept Mr Thompson's submission that his contempt should be regarded as "contumacious" after November 2018. I accept that his performance (as in efforts to purge his contempt) strangely improved from that time (see T25.06.19, p77, LL20-34).
I am satisfied that Council has exhibited commendable restraint at all times, and has done all that could be expected of it, in respect of encouraging and assisting the Defendant to comply with the Court's orders.
However, the time has come to do what the psychologist, Michelle Fisher, recommended, before the sentencing hearing commenced in earnest, namely, put an independent "third party administrator" in charge.
The request for a writ of sequestration ought to be granted, and I urge Council to be scrupulously fair to Camilleri and Diane in the sequestration process.
Turning then to penalty, I am conscious of the burden the sequestration of his property will place on Camilleri, and I take into account also his record, his fragile health, and poor financial position, and the utilitarian value of his guilty pleas, and I will dramatically reduce the fine his conduct should, in normal circumstances, attract.
Capacity to pay is a relevant consideration, but not decisive: see Kara-Ali (No 3), at [188]-[192], and the cases discussed therein, including Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27
There is no real evidence of any genuine contrition or remorse beyond his pleas and "formal" apologies - as his comments to the psychologist confirm.
It remains critical that conduct such as his be publicly denounced, and that he and the general public be effectively deterred from repeating it.
The Council's costs must be paid. He has already agreed to several lump sum costs orders, and I made an indemnity costs order against him on, and in respect of, the hearing on 2 April 2019.
Costs have been unnecessarily and unjustifiably inflated by Camilleri's continued defiance of the authority of both the Council and the Court. See Kara-Ali No 3, at [199], and Blacktown City Council v Nitopi [2019] NSWLEC 40, at [220].

[21]

Orders

The Court makes the following Orders: 1. In respect of the various Notices of Motion before the Court: 1. The Council's Notices of Motion filed in each matter on 10 May 2019 are upheld. 2. Insofar as may be necessary, the Notice of Motion filed by Saviour Camilleri and Diane Borg, covering both matters, on 2 April 2019 is dismissed, with costs. 1. Saviour Camilleri is convicted of the contempts of Court with which he was charged in each matter on 4 October 2017. 2. Saviour Camilleri is ordered to pay a fine of $12,500 in each case. 3. All costs orders previously made in either or both proceedings are confirmed, and Saviour Camilleri is now formally ordered to pay Council's costs of both proceedings, as agreed or assessed, with all those incurred by Council on or since 29 November 2018 to be paid on an indemnity basis. 4. I direct the Registrar to issue a writ of sequestration in each matter in respect of the Estate of Saviour Camilleri, including the land in Lot 230A DP17288, known as 223-235 Burley Road, Horsley Park, generally in the terms of the draft writ annexed to Council's Notice of Motion filed 10 May 2019, and now forming the two Annexures marked "A" to this judgment. 5. William James Hamilton and Barry Anthony Taylor are jointly appointed as the sequestrators of the Estate of Saviour Camilleri, on the terms contained in and/or annexed to their respective affidavits filed in these proceedings on 9 and 10 May 2019. 6. Council is directed to acquaint the sequestrators with not only the terms of this judgment, but the official transcript of the hearing on 25 June 2019, and the arrangements agreed between Council's Glen Steven Bruce and Diane Borg, regarding items left on the subject lands. 7. The prosecuting Council and the sequestrators are granted liberty to apply to the Duty Judge, on three working days' notice, in regard to the implementation of these orders. 8. The Court and Evidence Books, and all exhibits (including Exhibit DB1 to Diane Borg's affidavit of 12 March 2019), are returned.

At a glance

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Judgment (22 paragraphs)

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