Fairfield City Council v Camilleri (No 2)

Cases Cited: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21
Australian Securities and Investments Commission v Matthews [2009] NSWSC 285
BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554
Blacktown City Council v Everson [2019] NSWLEC 4; (2019) 237 LGERA 106
Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80
Brennock & Dixon v Norman [2021] NSWSC 1182
CLGC Pty Ltd v Zhang (No 3) [2025] NSWSC 36
Council of the City of Sydney v Mae (No 2) [2012] NSWLEC 188; (2012) 191 LGERA 96
Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407
Council of the New South Wales Bar Association v Rollinson; Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390
Cumberland Council v Khoury [2017] NSWLEC 14; (2017) 222 LGERA 78
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Fairfield City Council v Camilleri [2019] NSWLEC 95
Fairfield City Council v Camilleri [2024] NSWLEC 56
Ferguson v Dallow (No 5) [2021] FCA 698
Georges River Council v Hamade [2023] NSWLEC 71
Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111
Lake Macquarie City Council v Gordon [2017] NSWLEC 122; (2017) 228 LGERA 123
Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556
NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97
Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106
Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136
Sutherland Shire Council v Perdikaris [2020] NSWLEC 111
Sydney City Council v Sydney Tool Supplies Pty Ltd (No 3) [2012] NSWLEC 27
Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596; [2011] FCAFC 17
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Yuan v Huang [2023] NSWSC 1021

Category: Sentence

Parties: Fairfield City Council (Applicant)
Saviour Camilleri (Respondent)

Representation: Counsel:
R White (Applicant)
Saviour Camilleri, self-represented (Respondent)
Solicitors:
Houston Dearn O’Connor Lawyers (Applicant)
Self-represented (Respondent)

File Number(s): 2022/00149918

Publication restriction: Nil

JUDGMENT

Introduction and outcome

1. By notice of motion filed 5 September 2024 (and amended 4 April 2025), Fairfield City Council (‘Council’) seeks orders that Saviour Camilleri be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders made by this Court on 3 November 2022, that he be punished by way of a conviction and imprisonment for disobeying the said orders, and that the sentence of imprisonment be wholly suspended upon conditions.

2. For the reasons that follow, I find that Mr Camilleri has committed contempt of this Court as charged and the contempt is objectively serious. Despite the contention of Council that Mr Camilleri should be sentenced to a term of imprisonment (with suspension), I consider that the appropriate form of punishment is to impose a fine in the sum of $45,000 with suspension of that fine on condition that Mr Camilleri cease his conduct constituting the contempt and remove and dispose of specified waste materials from land at 223 to 235 Burley Road, Horsley Park within 28 days, and should he not do so, Council is directed to effect discrete works at Mr Camilleri’s cost.

Evidence

3. Council reads four affidavits of Frank Bono sworn 21 December 2022, 5 September 2024, 7 February 2025, and 2 April 2025; and the affidavit of Harrison James Woods affirmed 2 April 2025. Mr Camilleri, who appeared without legal representation, gave short oral evidence and made submissions.

Background

4. At all material times, Mr Camilleri has owned land at 223 to 235 Burley Road, Horsley Park, being Lot 230A in DP 17288 (‘land’). For some time, he has used the land for the purpose of a waste or resource management facility – a use which was and is prohibited under the Fairfield Local Environment Plan 2013 (‘FLEP’).

5. On 24 May 2022, Council commenced Class 4 civil enforcement proceedings against Mr Camilleri seeking the following relief:

“1. The Respondent, his servants, agents, contractors and assigns within seven days of the date of Orders being made by the Court must:

(a) Cease to use [the land at] 223 to 235 Burley Road Horsley Park New South Wales 2175 (“the land”) for the purposes of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013 (“the FLEP”)

(b) Remove from the land [at 223 to 235 Burley Road Horsley Park] all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks and unregistered trailers.

2. The Respondent, his servants, agents, contractors and assigns are hereby restrained from introducing, stockpiling, keeping, storing or the like any waste materials onto the land, including but not limited to the items referred to at 1(b) herein.

…”

6. On 3 November 2022, in accordance with signed consent orders dated 1 November 2022 disposing of the Class 4 proceedings, the Court made the following orders:

“By consent:

1. Before the expiry of three months after the date of these Orders being made by the Court the Respondent, his servants, agents, contractors and assigns must:

(a) Cease to use 223 to 235 Burley Road Horsley Park New South Wales 2175 (“the land”) for the purposes of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013 (“the FLEP”); and,

(b) Remove from the land all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks and unregistered trailers.

2. After the expiry of three months from the date of these Orders being made by the Court and thereafter continuing as an obligation the Respondent, his servants, agents, contractors and assigns must not introduce, stockpile, keep, or store any waste materials onto the land, including but not limited to the items referred to at 1(b) herein.

3. The Respondent must pay the Applicant's costs as agreed in the sum of $10,000.00 before the expiry of three months of the date of these Orders being made by the Court.

4. These proceedings are otherwise dismissed.”

(‘Court Orders’).

7. On 8 February 2023, shortly after the time for compliance with the Court Orders had expired, Frank Bono, Council’s senior investigation officer, attended the land and observed that waste materials, including of the type referred to in Order 1(b) of the Court Orders, continued to be kept and stockpiled on the land. He observed that there were piles of waste materials stockpiled at the rear of the land and took photographs of what he saw on the land.

8. On 1 March 2023, Mr Bono again attended the land and observed that the waste materials had not been removed from the land and that waste materials continued to be stockpiled, kept, or stored on the land. He observed abandoned vehicles, metal piping, metal roofing, bricks and other waste materials.

9. On 6 June 2023, Mr Bono again attended the land and observed that items and materials that he had observed previously on the land had not been removed. He observed that a trailer full of waste materials, four trucks and an excavator had been added to the land since his previous visits. One truck containing six full skip bins had also been parked on the land. He had not seen this truck during his previous investigations.

10. On 13 July 2023, Mr Bono again attended the land and observed that metal roofing, metal piping, bricks, pallets, abandoned trucks, excavators, skips containing waste materials and other waste items falling within the description in Order 1(b) of the Court Orders remained on the land.

11. On 5 March 2024, Mr Bono again attended the land and observed that the items and waste materials he had previously recorded on the land had not been removed.

12. By notice of motion filed 11 August 2023, Council sought orders that Mr Camilleri be found guilty of contempt for disobeying or otherwise failing to comply with the Court Orders. An amended statement of charge was subsequently filed on 13 September 2023.

13. On 10 November 2023, Mr Camilleri pleaded guilty to the contempt charge and a hearing on penalty was held on 29 May 2024. Mr Camilleri was legally represented at the hearing and relied upon evidence served on his behalf, including a report from Susan Homeh Hawil, a psychologist.

14. In a judgment dated 30 May 2024, the Court found that Mr Camilleri had committed wilful contempt in failing to comply with the Court Orders and that the contempt was objectively serious. The Court imposed a fine in the sum of $20,000 and ordered Mr Camilleri to pay Council’s costs on an indemnity basis: Fairfield City Council v Camilleri [2024] NSWLEC 56 (‘earlier Camilleri judgment’).

15. On 4 June 2024, Mr Bono again attended the land and observed Mr Camilleri drive a white semi-trailer with approximately four skip bins containing waste, together with other waste comprising timber and pallets, onto the land. In addition to the waste, a bobcat was loaded on the semi-trailer. Mr Bono advised Mr Camilleri not to take the waste onto the land and he noted that Mr Camilleri became aggressive. Shortly thereafter, Mr Bono observed the semi-trailer parked in the driveway of the land.

16. On 13 June 2024, Mr Bono again attended the land and observed that more waste had been brought onto the land. He made a file note and took photographs recording the additional waste he had observed.

17. On 4 September 2024, Mr Bono again attended the land and observed that waste materials remained on the land but was unable to determine if there was more or less than his last inspection. He made a file note and took photographs of the waste which show metal roofing, metal piping, bricks, pallets, abandoned trucks and other waste items falling within the description in Order 1(b) of the Court Orders remained on the land.

18. Council maintains, as it did in the earlier proceedings, that Mr Camilleri’s use of the land, as depicted in the photographs taken by Mr Bono, is appropriately characterised as a waste disposal facility, being a type of “waste or resource management facility” as defined by the FLEP.

19. The land is zoned RU4 Primary Production Small Lots in the FLEP. Use of the land to store the items particularised in Order 1(b) of the Court Orders (and as shown in the photographs taken by Mr Bono) is prohibited in the RU4 zone.

20. In its notice of motion filed 5 September 2024, Council sought orders that Mr Camilleri be found guilty of contempt and be punished by way of conviction and imprisonment, with the sentence being suspended on condition that Mr Camilleri allow Council to undertake the removal of the waste materials and that Mr Camilleri be responsible for the costs of such removal.

21. During the hearing of the motion on 4 April 2025, Council was granted leave to amend its notice of motion (as shown below) to claim the following relief:

“1 The Respondent is guilty of contempt of this Court for disobeying or otherwise failing to comply with the Orders made by this Court on 3 November 2022 within the time period required by those Orders, as charged in the Statement of Charge filed with this Motion.

2 The Respondent is punished by way of a conviction and imprisonment for contempt of this Court for disobeying or otherwise failing to comply with the Orders made by this Court on 3 November 2022.

3 The sentence of imprisonment is wholly suspended on the following conditions:

a. That within 28 days of the date of these Orders, the Respondent, his servants, agents, contractors and assigns must:

i. Remove from the land all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks, unregistered trailers, and motor vehicles over 4.5 gross vehicle mass excluding one working tractor; and

ii. Dispose of all waste materials removed from the land at a lawful waste disposal facility; and

iii. Provide the Applicant with receipts proving disposal of the waste at a lawful waste disposal facility.

b. If Order 3(a) is not complied with, then on the 29th day after the date of these Orders, That within 28 days of the date of these Orders, the Respondent allow the Applicant and a licenced contractor onto the land being 223 to 235 Burley Road Horsley Park New South Wales 2175 (“the Land”) to allow the Applicant to assess the cost to the Applicant:

i. to remove from the land all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks and unregistered trailers; and

ii. perform any rectification work required as a result of the Respondent’s failure to cease use of the Land for the purpose of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013.

c. That within 3 months of the date of these Orders, the Applicant and its licenced contractor be authorised to enter the Land for the purpose of performing the works referred to in paragraph 3(a)(i) 3(b)(i) and 3(a)(ii) 3(b)(ii) above;

d. That upon receiving notification from the Applicant that the work referred to in 3(a)(i) 3(b)(i) and 3(a)(ii) 3(b)(ii) above will commence, the Respondent must allow at any time the contractor and the Applicant onto the Land for the purpose of performing the works;

e. That within 14 days of the performance of the works referred to in 3(a)(i) 3(b)(i) and 3(a)(ii) 3(b)(ii) above, the Applicant provide to the Respondent an invoice for the costs of the performance of those works;

f. That within 28 days after receipt of the invoice, the Respondent must pay to the Applicant the costs identified in that invoice.

4 Such further orders as the nature of the case may require.

5 The Respondent is to pay the Applicant’s costs of this Motion on the indemnity basis.”

Council’s position

22. In relation to liability, Council submits:

23. The Court would be satisfied that Council has proved beyond reasonable doubt that Mr Camilleri is guilty of contempt and has continued to breach the Court Orders following the earlier Camilleri judgment on and after 4 June 2024;

24. Council has satisfied the onus of establishing the five elements (noted in Yuan v Huang [2023] NSWSC 1021 (‘Huang’) at [19]) of the contempt charge beyond reasonable doubt, being, first, that the Court has made an order; second, that the terms of the order are clear, unambiguous and capable of compliance; third, that the order was served on the alleged contemnor; fourth, that the contemnor has knowledge of the terms of the order; and fifth, that the contemnor has breached the terms of the order;

25. The Court would be satisfied that Council has proved each of the first four elements of the contempt charge beyond reasonable doubt, as the terms of each of the Court Orders (particularly, Orders 1(b) and 2) are clear, unambiguous and capable of compliance. Further, Council draws attention to the fact that the Court Orders were orders made by consent in 2022 at a time when Mr Camilleri was legally represented, which is demonstrated by the consent orders being signed by his solicitor on 1 November 2022;

26. As Mr Camilleri was represented at the earlier contempt hearing in 2024 before the Court, the Court can be satisfied beyond reasonable doubt that he was aware of the existence of the Court Orders and that he has at all relevant times had knowledge of their terms;

27. It is sufficient that the Court finds that Mr Camilleri either deliberately committed an act or omitted to do some act which had the effect of breaching the Court Orders (which Council maintains is consistent with the circumstances of this case). Mr Camilleri’s omission in this case is the failure to remove the waste from the land;

28. Mr Camilleri has continued to breach Order 1(b) of the Court Orders throughout 2024 in that he has not removed from the land the waste materials the subject of Order 1(b) and he has breached Order 2 in that from 4 to 13 June 2024 he brought further waste materials onto the land; and that on 4 September 2024 the waste materials remained stockpiled on the land.

29. Mr Camilleri’s conduct (which was found to be wilful in the earlier Camilleri judgment (at [38])) amounts to contumacious conduct because there has been an intentional disobedience of the Court Orders in that he has been aware of the Court Orders but has nonetheless continued with the stockpiling of waste on the land throughout 2024 and 2025, and continues to use the land for stockpiling waste notwithstanding the previous hearing before the Court and has made no attempt to purge the contempt since the date of that hearing; and

30. The evidence of Mr Bono demonstrates that during 2024 Mr Camilleri continued to bring more waste onto the land, which is demonstrative of deliberate conduct by Mr Camilleri which is calculated to thwart the fundamental purpose of the Court’s orders. This is a “flagrant” breach because Mr Camilleri has deliberately failed to make any attempt to comply with the Court Orders.

31. In relation to an appropriate sentence, Council submits:

32. Since the publication of the earlier Camilleri judgment, the contempt has become more serious as Mr Camilleri has not yet removed waste items from the land and has imported more waste onto the land;

33. Mr Camilleri has had ample time to purge his contempt but has not done so, in circumstances where the Court Orders required the waste items to be removed by no later than 3 February 2023 and after that date no waste materials were permitted to be introduced, stockpiled, kept or stored on the land; and now, more than two years later, the waste items remain on the land and the storage of this scale of waste is still prohibited under the FLEP;

34. Mr Camilleri has not served any evidence in these proceedings as to his personal circumstances (including his mental health), notwithstanding the Court’s finding that Mr Camilleri’s mental health was relevant to his moral culpability in the earlier Camilleri judgment;

35. Mr Camilleri should not be entitled to any mitigation or benefit connected through contrition, remorse or an apology, as he has not availed himself of the opportunity to put on any persuasive evidence in circumstances where the Court previously made orders giving Mr Camilleri that opportunity;

36. Mr Camilleri’s conduct indicates a “continuing attitude of disobedience towards the law” and his contempt is not an uncharacteristic aberration: Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [92];

37. Because Mr Camilleri has not purged his contempt and has taken no steps towards complying with the Court Orders (which has resulted in an ongoing contempt), the Court should conclude that it is likely that Mr Camilleri will reoffend, that the waste materials will continue to be stockpiled on the land, and that further waste may be brought onto the land in the future;

38. That significant weight should be given to both general and specific deterrence because the authority of the Court to enforce court orders in relation to planning law is eroded, and specific deterrence is appropriate to prevent Mr Camilleri from engaging in conduct, whether by action or omission, in breach of the Court’s orders in the future; and

39. As the fine imposed in the earlier Camilleri judgment (and other punishments imposed by this Court on Mr Camilleri) has not been sufficient to compel Mr Camilleri to comply with the Court Orders, the appropriate sentence would be to impose a sentence of imprisonment which should be suspended subject to conditions, including, first, that Mr Camilleri remove all waste materials from the land within 28 days, failing which; second, that he authorise Council and a licensed contractor to enter the land to assess the cost to Council of removing the waste from the land; third, that he authorise Council to enter the land in order to remove the waste; and fourth, that he pay Council’s costs of removing the waste from the land.

40. In summary, Council’s position is that Mr Camilleri’s conduct is deserving of sufficient condemnation such that the Court has no option but to impose a term of imprisonment. However, having regard to the whole circumstances of this case and Mr Camilleri’s evidence that he is able to remove the waste materials from the land, Council submits that Mr Camilleri should be given “one further chance” and the suspension of the sentence of imprisonment would apply on certain conditions being met, and that in the absence of Mr Camilleri attending to the removal (and proper disposal) of the identified waste materials, Council be allowed to attend to the obligations otherwise required by the Court Orders with Mr Camilleri being responsible for the costs.

Mr Camilleri’s position

25. As noted above, Mr Camilleri appeared at the hearing without legal representation, gave short oral evidence in the witness box and made submissions from the bar table. He was assisted during the course of the hearing by his partner, Diane Borg. With respect to Mr Camilleri’s submissions and evidence and my concerns that he is unrepresented, the following summary is taken from the transcript of 4 April 2025:

26. When Mr Camilleri became aware of the nature of the relief Council now seeks, Mr Camilleri stated that he simply wanted to “carry on” with his life as he had lost 90% of his earlier work and no longer worked at all. He was concerned that Council would simply come and take the material away from the land;

27. Mr Camilleri stated that he would have liked “a bit more than 28 days [a time Council submitted was appropriate] to organise stuff” because he owed financial obligations to other people regarding their properties and he was “kind of broke”, however he understood that he had “disobeyed” some of the orders earlier made. He stated that he was able to remove the material about which Council remained concerned, as most of the material was “on racks” and was able to be moved with a bobcat;

28. Mr Camilleri had a concern in relation to the precise “items” Council wanted to be removed from the land and this related to the identification of one or more trucks and semi-trailers presently on the land. He indicated that there were no “stockpiles” of material and that there was just a “bit of metal and piping”;

29. Mr Camilleri indicated that at the “last time” (he was charged with contempt), he had “solicitors and barristers” to whom he had paid money and they “forced me to plead guilty”, and “I followed their orders”;

30. Mr Camilleri indicated that he understood the orders now sought against him, and that he should have complied with the earlier orders; and

31. While Mr Camilleri understood that the Court’s concern was his non-compliance with the Court Orders, as he kept sheep and cattle on the land, and he needed “gates and fencing stuff” to repair fencing and keep the animals in their enclosure.

Consideration

26. In summary, from the evidence now before the Court including the admissions made by Mr Camilleri (and accepting the submissions made by Council summarised at [22]-[24] above), I am satisfied beyond reasonable doubt, first, that the Court has made the Court Orders; second, that the terms of the Court Orders are clear and unambiguous and capable of compliance; third, that the Court Orders have been served on Mr Camilleri; fourth, that Mr Camilleri has had knowledge of the terms of the Court Orders; and fifth, that Mr Camilleri has breached the terms of the Court Orders.

27. I also find that Mr Camilleri’s breach was contumacious involving the deliberate defiance of the requirements of the Court Orders in circumstances where he was well aware of the Court Orders and he continued to breach them. It now falls to me to consider an appropriate punishment.

Principles

28. The underlying rationale of sentencing for contempt (be it civil or criminal contempt) is that it is necessary to safeguard the effective administration of justice which it does by demonstrating that a court’s orders will be enforced: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46. In setting the punishment for contempt it is necessary to bear in mind the purpose of punishing the contemnor, which is deterrence of the contemnor and others in the future from committing similar contempts and denouncing the conduct concerned in an emphatic way: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314; NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 (‘NHB Enterprises’) at [26]-[27]; CLGC Pty Ltd v Zhang (No 3) [2025] NSWSC 36.

29. Part 55, r 13 of the Supreme Court Rules 1970 (NSW), which applies to Class 4 proceedings in this Court (per r 6.3 of the Land and Environment Court Rules 2007 (NSW)), 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.

…

(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.

30. The distinction between “civil” and “criminal” contempt, while much criticised, persists: Hearne v Street (2008) 235 CLR 125 at 131; [2008] HCA 36; Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 (‘Rollinson (No 2)’) at [58]. Breaches of court orders, similar to those that Mr Camilleri has committed, are treated as “civil” contempt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 (‘Witham’) at 530. Despite this, if a breach of an order can be characterised as “contumacious” or “defiant”, then that breach amounts to a “criminal” contempt: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489; [1965] HCA 21; Witham at 530.

31. Simply stated, while both wilful and contumacious contempt involve intentional non-compliance with a court order, contumacious contempt is of larger gravity and renders what would otherwise be civil contempt criminal contempt because it involves conscious defiance of a court’s order and its authority: Georges River Council v Hamade [2023] NSWLEC 71 at [40]-[41].

32. Contempt will be contumacious if it involves deliberate defiance. In the context of a breach of a court’s orders it is enough that there is deliberate conduct which is calculated to thwart the fundamental purpose of a court’s orders: Witham at 530; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 at [102]-[114]; Brennock & Dixon v Norman [2021] NSWSC 1182 at [12]-[13]. However, it is still open to a court to punish contempt by imprisonment even if the contempt is not contumacious: BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554 at [17]-[18].

33. Council seeks that the Court exercise its power sourced in its inherent jurisdiction to impose a sentence of imprisonment which is suspended upon the conditions noted at [20]-[21] above, to which Mr Camilleri is required to adhere. This involves a two-step process in which the Court considers, first, the appropriate length of the period in custody without regard to the possibility it may be suspended; and second, whether it should be suspended by reference to such matters as the nature of the offence, its objective seriousness, the need for specific or general deterrence and the subjective circumstances of the offender: Council of the New South Wales Bar Association v Rollinson*; Council of the New South Wales Bar Association v Rollinson* [2022] NSWSC 407 (‘Rollinson’) at [90]; Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 (‘Ibrahim’) at [82]-[87].

34. While a court has power to sentence a person to a term of imprisonment for contempt, it is well-established that this is a penalty of last resort: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (‘He v Sun’) at [68]; NHB Enterprises at [30]. In He v Sun, McCallum JA said at [68]:

“…imprisonment is a punishment of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115] (Spigelman CJ, Wood CJ at CL and Simpson J). While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law’s acceptance that the right to personal liberty is a fundamental common law right which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 292 (Mason and Brennan JJ). In my view, it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing the offender to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question.”

35. The Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) do not apply to punishments for civil contempts: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58].

36. In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285 (‘Matthews’), Barrett J set out at [27] the following factors as being relevant to the determination of the appropriate penalty for contempt including a breach of court orders:

“1. The seriousness of the contempt proved.

2. The contemnor’s culpability.

3. The reason or motive for the contempt.

4. Whether the contemnor has received, or sought to receive, a benefit or gain from the contempt.

5. Whether there has been any expression of genuine contrition by the contemnor.

6. The character and antecedents of the contemnor.

7. The contemnor’s personal circumstances.

8. The need for deterrence of the contemnor and others of like mind from similar disobedience.

9. The need for denunciation of contemptuous conduct.”

37. In Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 (‘Kazal’) at [102], the Full Court described this as a useful, although not exhaustive, list of the relevant factors in assessing the appropriate penalty and added at [103]:

“…The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor’s culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.”

38. As noted by Payne JA in Rollinson (No 2) at [67], the likely effect that punishment will have on the contemnor including any “hardship” it may cause (‘factor (10)’) should be added to the list in Matthews.

Findings

39. In determining punishment, I have taken the above noted factors into account. In respect of factor (1), “seriousness”, I find that Mr Camilleri’s conduct, given the nature, extent and circumstances of the previous finding of contempt, is objectively serious as it represents defiance of the Court’s authority, although I find the defiance is more of “private resistance” than “public defiance”: Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596; [2011] FCAFC 17 at [177].

40. In respect of factor (2), “culpability”, the contemnor’s state of mind is a relevant matter as it may aggravate or mitigate the seriousness of the contempt. In Kazal, the Full Court said:

“[105] State of mind can serve to mitigate or aggravate conduct by a contemnor. In the case of aggravation, this is reflected in the conclusion reached as to whether or not the nature of the contempt, combined with the proven state of mind, may be regarded as contumacious. Evidence of an innocent or inadvertent state of mind may serve to mitigate. It follows that state of mind will almost always be a relevant consideration when it comes to penalty, somewhat analogous to the situation with civil penalty contraventions: cf Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 (Reckitt) at [123]-[124].

[106] Aggravation by way of conduct and a state of mind found to be contumacious can be seen to be on a sliding scale. For example, it may range from deliberate and wilful defiance, to an unsuccessful attempt to get around a prohibition, to an unsuccessful attempt to comply with a prohibition. Proven recklessness or carelessness may be seen not to be contumacious at all. This process of characterisation is inevitably driven by close attention to what was done. This includes what can be said about state of mind able to be ascertained from all of the evidence, including by way of inference.”

41. I find that Mr Camilleri’s state of mind did involve a deliberate and wilful defiance, more so than proven recklessness or carelessness.

42. In respect of factor (3), “reason or motive”, and factor (4), whether a “benefit” was received, there is no evidence relating to reason or motive, nor is there evidence in relation to whether Mr Camilleri received a benefit from his conduct in failing to remove the waste materials.

43. In respect of factor (5), remorse and “contrition”, while I am conscious of Mr Camilleri’s lack of legal representation, and relying on the evidence in relation to Mr Bono’s attendances on the land, there is no submission or evidence of Mr Camilleri displaying anything amounting to an apology or an expression of remorse or contrition.

44. In respect of factor (6), “character and antecedents”, I am conscious that when determining the penalty for contempt, any relevant history of the offender will include other findings of contempt or convictions for offences similar to contempt. In Ferguson v Dallow (No 5) [2021] FCA 698 at [20], O’Callaghan J said the following about this (adopted by Rees J in Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 at [9]):

“[20] …As a general principle, when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt. In fixing a penalty for contempt the court should take into account only other findings of contempt and should treat as irrelevant the existence of prior convictions of another kind, except for convictions for offences similar to contempt.” (Citations omitted.)

45. Mr Camilleri has previously been punished for contempt in connection with breaches of earlier orders made by the Court. In Fairfield City Council v Camilleri [2019] NSWLEC 95, the contempt arose out of unlawful storage of waste and for the keeping of livestock by Mr Camilleri both on the land and on land at 224 to 234 Delaware Road, Horsley Park. Those contempt proceedings related to consent orders made by Moore J on 7 October 2016 requiring Mr Camilleri, inter alia, to remove waste from the land and from 224 to 234 Delaware Road, which were not complied with. Council brought two contempt proceedings on 4 October 2017 and Mr Camilleri pleaded guilty to the charges, and on 5 July 2019, Sheahan J ordered Mr Camilleri to pay a total fine of $25,000. The waste materials on the land were subsequently removed by Mr Camilleri.

46. However, during 2019, Council became aware that Mr Camilleri was again introducing waste onto the land. Council commenced these further Class 4 civil enforcement proceedings against Mr Camilleri culminating in the Court Orders, the breach of which then led to the contempt proceedings which were heard on 29 May 2024, which again involved Mr Camilleri’s plea of guilty and the earlier Camilleri judgment, where on 30 May 2024, Mr Camilleri was fined $20,000 and ordered to pay costs on an indemnity basis.

47. In respect of factor (7), “personal circumstances”, there is little evidence before the Court in relation to Mr Camilleri’s personal circumstances (including his current position in life), apart from his short oral evidence and statements from the bar table which indicate that Mr Camilleri’s personal circumstances are very limited.

48. In respect of factor (8), “deterrence”, and factor (9), “denunciation”, I accept Council’s submission that the Court should take into account both personal and general deterrence in determining the appropriate sentence. General deterrence is important because Mr Camilleri consented to the making of the Court Orders and the present contempt relates to an ongoing breach of planning law. Further, Mr Camilleri’s past conduct (noted above) highlights the need for some specific deterrence, particularly in circumstances where Mr Camilleri’s contempt has not been purged.

49. I also consider the authority to enforce consent orders in Class 4 of the Court’s jurisdiction would be diminished if there was no significant sanction for Mr Camilleri’s continuing disobedience.

50. In respect of factor (10), “hardship”, while there is no specific evidence in relation to hardship, I note Mr Camilleri’s present limited personal circumstances and consider that there is no doubt that imprisonment (being a last resort) or a substantial fine, would each cause significant hardship to Mr Camilleri.

51. Council directed the Court to Blacktown City Council v Everson [2019] NSWLEC 4; (2019) 237 LGERA 106 (‘Everson’), which Council maintained has “similar facts” in that the underlying problem was storage of waste and ultimately involved a breach of a court order, where Molesworth AJ (at [54]) observed that “[t]he Court is mindful that one highly desirable outcome of proceedings such as these is the potential rectification of the contravened planning law” and inherent in the concept of a suspended sentence is “the prospect that should the recognisance be breached, then the contemnor’s ‘default’ custodial sentence would be enlivened”.

52. As I have noted above, suspension of a sentence of imprisonment (as sought by Council) involves two steps: first, determining the appropriate length of the period in custody without regard to the possibility that it may be suspended; and second, considering whether the sentence should be suspended by reference to the factors considered above. Council maintained that the terms of the suspension it seeks would, in circumstances where Mr Camilleri does not purge his contempt, permit Council to clear the waste materials from the land and to restore the status quo ante: Everson at [54].

53. Council also directed the Court to the following cases to support its proposed sentence of imprisonment: Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 (‘Moira Shire’); Lake Macquarie City Council v Gordon [2017] NSWLEC 122; (2017) 228 LGERA 123; Cumberland Council v Khoury [2017] NSWLEC 14; (2017) 222 LGERA 78; Sydney City Council v Sydney Tool Supplies Pty Ltd (No 3*)* [2012] NSWLEC 27; Council of the City of Sydney v Mae (No 2) [2012] NSWLEC 188; (2012) 191 LGERA 96.

54. I have had regard to the decisions in the above cases. I have also had regard to the table of the range of penalties forming “Annexure A” to the decision of Zammit J in Moira Shire. In addition, I am conscious that Rollinson and Ibrahim each involved the imposition of a sentence of imprisonment for contumacious contempt suspended subject to specified conditions.

55. These prior decisions provide a yardstick against which to examine a proposed sentence, however it is trite that the imposition of a penalty here requires an evaluative exercise which must be focused on the consideration of the particular circumstances of this case: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [54].

56. Bearing in mind that the purpose of the imposition of a penalty for contempt is to uphold and vindicate the Court's authority, the seriousness of the contempt and the importance of general deterrence and denunciation for breaches of orders of the Court, I consider that the actual imposition of a term of imprisonment (even with suspension) is a punishment of last resort and is not presently warranted. It is also an order that I would be unable to make based on the present evidence. Further, although I have considered previous cases where the Court has imposed (and suspended) imprisonment, I do not consider that I can impose such a sentence (or even threaten such action) without more evidence regarding various alternative courses of action.

57. I consider that Mr Camilleri should be given a final opportunity to purge his contempt such that the penalty is suspended conditionally, and if Mr Camilleri does not comply with orders made in accordance with paragraph 3(a) of the amended notice of motion, orders will be made directing Council to enter the land to perform the works referred to in paragraph 3(b) of the amended notice of motion, with the costs of the performance of those works falling to Mr Camilleri.

58. Although not discretely raised by Council, I consider that the Court has power to impose an order under r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) to direct substituted performance, in circumstances where the Court Orders required the cessation of the use of the land for the purpose of a waste or resource management facility as defined by the FLEP as well as the removal of the waste materials. The Court also has power to make such orders pursuant to s 23 of the Land and Environment Court Act 1979 (NSW): Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136 at [67].

59. Given Mr Camilleri’s effective breach of the FLEP, it is appropriate that he should remedy the breach. This was the purpose of the Court Orders, and it is also a purpose of the punishment and the suspension of the punishment for his contempt in not complying with the Court Orders: Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [72].

60. The effect of the suspension of the penalty is that if Mr Camilleri complies with the orders that are to follow (in particular, Order 3(a) below), he will not have to incur the monetary penalty.

61. In summary, I have had regard to each of the following factors: the objective seriousness of the contempt; the conduct of Mr Camilleri, which I consider demonstrates a disregard of his obligation to comply with orders of the Court, being of high seriousness; that his conduct is intentional, and that the contempt is ongoing; his antecedents, including the previous convictions for contempt of the Court’s orders (also made by consent); the importation of further waste onto the land after the relatively recent hearing before the Court in May 2024; that Mr Camilleri has to date demonstrated no contrition or remorse; and the need, in these circumstances, for both general and specific deterrence.

62. After consideration of the factors referred to above and the evaluative exercise required and conscious of the matters in s 6 of the Fines Act 1996 (NSW), I find that the appropriate punishment for the contempt committed by Mr Camilleri is a monetary penalty of $45,000, the operation of which is to be suspended upon satisfaction of the conditions in paragraph 3 of the amended notice of motion.

Costs

63. Council seeks its costs on an indemnity basis. Although indemnity costs are commonly awarded in civil contempt cases (primarily as an important sanction to mark the Court’s condemnation of the breach of its orders), the question is always whether the particular facts or circumstances of a case warrant the making of an order for the payment of costs other than on a party and party basis.

64. While I am also conscious that contempt proceedings serve a public interest with the effect that a person who successfully brings proceedings should not be left out of pocket, there is no rule or principle that successful contempt proceedings necessarily attract indemnity costs orders as this would be inconsistent with the Court’s exercise of the curial costs discretion.

65. In the present circumstances, although I have taken into account the various factors in relation to the determination of penalty, I consider it appropriate to award Council its costs on an indemnity basis as it remains an important sanction to mark the Court’s condemnation of Mr Camilleri's conduct. As stated in the earlier Camilleri judgment (at [62]), I consider this is especially so where I am not satisfied that there will be full compliance with the Court Orders, and I am conscious that Council has previously brought a number of proceedings in relation to Mr Camilleri’s conduct regarding his failure to comply with earlier orders of the Court.

66. In the above circumstances, I find that it is appropriate that indemnity costs be awarded. I have taken into account my finding in favour of indemnity costs in my determination of Mr Camilleri’s overall punishment.

Orders

67. The Court makes the following orders:

68. Saviour Camilleri is guilty of contempt of this Court for disobeying or otherwise failing to comply with the orders made by this Court on 3 November 2022 within the time period required by those orders, as charged in the Statement of Charge filed 5 September 2024.

69. Saviour Camilleri is fined the sum of $45,000 for his contempt in failing to comply with Orders 1(a) and 1(b) made by this Court on 3 November 2022.

70. Payment of the fine in the sum of $45,000 is suspended upon condition that Saviour Camilleri undertake the following:

(a) That within 28 days of the date of these orders, Saviour Camilleri, his servants, agents, contractors and assigns:

(i) Remove from the land, being 223 to 235 Burley Road, Horsley Park (‘land’), all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks, unregistered trailers, and motor vehicles over 4.5 gross vehicle mass excluding one working tractor; and (ii) Dispose of all waste materials removed from the land at a lawful waste disposal facility; and (iii) Provide Fairfield City Council with receipts proving disposal of the waste at a lawful waste disposal facility.

(b) If Order 3(a) above is not complied with, then on the 29th day after the date of these orders, Saviour Camilleri allow (and the Court directs) Fairfield City Council and a licensed contractor to enter the land to allow Fairfield City Council to assess the cost to Fairfield City Council:

(i) To remove from the land all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks, unregistered trailers, and motor vehicles over 4.5 gross vehicle mass excluding one working tractor; and (ii) To perform any rectification work required as a result of Saviour Camilleri’s failure to cease use of the land for the purpose of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013.

(c) That within 3 months of the date of these orders, Fairfield City Council and its licensed contractor be authorised (and the Court directs) to enter the land for the purpose of performing the works referred to in Orders 3(b)(i) and 3(b)(ii) above. (d) That upon receiving notification from Fairfield City Council that the works referred to in Orders 3(b)(i) and 3(b)(ii) above will commence, Saviour Camilleri allow at any time the contractor and Fairfield City Council onto the land for the purpose of performing the works. (e) That within 14 days of the performance of the works referred to in Orders 3(b)(i) and 3(b)(ii) above, Fairfield City Council provide to Saviour Camilleri an invoice for the costs of the performance of those works. (f) That within 28 days after receipt of the invoice, Saviour Camilleri pay to Fairfield City Council the costs identified in that invoice.

4. Saviour Camilleri is to pay the costs of Fairfield City Council for the notice of motion for contempt filed 5 September 2024 (and amended 4 April 2025) on an indemnity basis.

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