Georges River Council v Mifsud

Charge of contempt

1. The Council filed a notice of motion on 6 March 2017 seeking an order that Mr Mifsud is guilty of contempt. The statement of charge filed 6 March 2017, amended during the hearing on 26 July 2017, provides as follows: … b. References to "articles" includes any goods, materials, articles, objects and items whether used or second hand, c. References to the "Judgment/Order" is the Judgment/Order made by the Land and Environment Court on 22 December 2016, d. References to the "Orders" are the Consent Orders as made and entered by the Land and Environment Court on 9 January 2015, as referenced in the Judgment/Order and annexed thereto and marked "A" e. References to the "Undertaking" is the Undertaking to the Court signed by the First Respondent and the Second Respondent and dated 17 December 2016, as referenced in the Judgment/Order and annexed thereto and marked "C", f. References to Areas A, B and C are references to the areas so marked on the plan marked "P" Revised Plan, as referenced in the Judgment/Order made on 22 December 2016 and annexed thereto and marked "B". To the First Respondent, Emanuel Mifsud …you are charged with contempt of Court in that: 1. Within 14 days of 17 December 2016, you did not move the articles placed on the Land in Areas B and C to Area A; in breach of the terms of paragraph 2(a) of the Undertaking. Particulars: a. Articles including but not limited to a dressing table, cars and a high pressure water hose were placed in Area B on 7 December 2016 and 6 January 2017 and 6 February 2017. b. Articles were placed in Area C on 7 December 2016 and 6 February 2017. 2. As at 28 February 2017 you continued to place articles on the Land in Area B; in breach of the terms of paragraph 2(a) of the Undertaking. 3. From 17 December 2016 you placed articles in Area A other than in the manner required by the Orders; doing so in breach of the terms of paragraph 2(b) of the Undertaking. Particulars: a. Articles or matter were placed in Area A in a manner so that they encroached into Area C; in breach of order 9 of the Orders. b. Area A was not 0.9m west of the eastern site boundary and 0.9m east of the eastern wall of the dwelling house on the Land; in breach of order 9 (iv) of the Orders. c. The height of certain material placed in Area A (with the exception of any single items that exceed 1.25m in height), exceeded 1.25m from ground level; in breach of order 9(i) of the Orders. d. No baits were observed in Area A; in breach of order 9(iii) of the Orders. 4. From 17 December 2016 you did bring articles, matter and other things onto the Land outside Area A and not inside the existing house, garage and garden shed; doing so in breach of the terms of paragraph 2(c) of the Undertaking. Particulars a. The volume of articles and matter in Area B increased during the period 7 December 2016 to 6 January 2017. b. The volume of articles and matter in Area B increased during the period 6 January 2017 to 6 February 2017. c. Putrescible articles or matter had been placed in Area B during the period 7 December 2016 to 6 January 2017. d. On 6 January 2017 there were 4 unregistered cars in Area B. On 6 February 2017 there were 5 unregistered cars in Area B. e. On 6 February 2017 there was a dinghy in Area B that had not previously been in Area B.
2. The amendment made to the statement of charge was that the word "stored" was replaced by "placed" throughout. Mr Mifsud pleaded guilty to the charge on 21 April 2017 at the second mention of this matter before the Court. A plea of guilty is generally an admission of guilt in relation to each element of the contempt. I am sentencing Mr Mifsud for contempt of court. Mr Mifsud represented himself.

Requirements for commencement of contempt proceedings

1. By virtue of r 6.3 of the Land and Environment Rules 2007, Pt 55 of the Supreme Court Rules 1970 (SC Rules) apply to these contempt proceedings. Part 55 states in part: Part 55 Contempt ... 6 Procedure generally (1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders. (2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders. 7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons. ... 9 Service The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor. ... 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.
2. Service requirements of Pt 55, r 9 were met as identified by the affidavit of Ms Taylor Council ranger dated 27 July 2017 confirming personal service of the statement of charge, notice of motion seeking orders for contempt and affidavit of Mr Shah dated 3 March 2017 on Mr Mifsud on 9 March 2017.
3. The focus of these contempt proceedings is the failure to comply with the orders made on 22 December 2016, which in large part incorporate the orders made on 9 January 2015, as confirmed in an undertaking given to the Court by Mr Mifsud on 17 December 2017.

Evidence in relation to non-compliance with Court orders and undertaking

1. Mr Shah Council environmental health officer affirmed an affidavit dated 3 March 2017. In his affidavit Mr Shah described the areas of Mr Mifsud's property referred to in the amended statement of charge and Court orders of 9 January 2015. Area A was located behind the garage on the eastern side of the property. Area B referred to the front yard, driveway and porch of the property. Area C referred to the rear yard, rear outdoor entertaining area and area between the side of the property and the fence on the western side (see "P" Revised Plan annexed to this judgment). Articles were permitted to be stored or placed in Area A only, provided they did not exceed 1.25 m in height.
2. Attached to Mr Shah's affidavit were a number of photos taken during several inspections of the property between 6 February 2015 and 6 February 2017. This bundle of photographs became Exhibit A in the proceedings.
3. Mr Shah attested that Council inspections between January and March 2015 revealed general compliance with the 9 January 2015 orders. The Land did not come to the attention of the Council until 19 September 2016 when Mr Shah received notification of a complaint from a neighbour concerning the accumulation of articles on the Land outside Area A. He inspected the Land on that day and observed articles placed in Area B. Further inspections were undertaken on 11 and 13 October, 10 and 15 November and 7 and 15 December 2016. These revealed that various items were located in Areas B and C including ladders, food items, appliances, paint brushes, containers of chemicals, delivery trolleys, cardboard boxes, petrol and oil bottles, brooms, power leads and cords, household items, white goods, furniture, cars, power tools, building materials, electronic items, camping equipment, mattresses and pillows, window blinds, a pedestal fan, fencing materials, a dressing table and mirror, bird cages, lawn mowers, whipper snippers, printers, luggage and bicycles.
4. Mr Mifsud was made aware of the effect of the 9 January 2015 orders both in person and by correspondence during this period. He was spoken to in person on 11 and 13 October and 9 November 2016. Correspondence as to the requirements of the orders was sent to Mr Mifsud on 28 November and 8 December 2016.
5. On 14 December 2016 the Council's solicitors wrote to Mr and Mrs Mifsfud proposing an alteration to the terms of the 9 January 2015 orders to increase the size of Area A and seeking an undertaking to remove articles from other areas of the Land within 14 days.
6. Mr Shah undertook an inspection of the Land on 6 January 2017. Mr Shah was unable to access Areas A and C as Mr Mifsud was not present to facilitate access to the Land. Photographs in Exhibit A taken during this inspection show a large volume of articles in Area B which is the only area visible from the street. This included four unregistered cars, electrical appliances, a dressing table and other furniture, food, paint tins and cardboard. There was an offensive odour of rotting food. Mr Shah attested to having seen a dressing table, high pressure water hose and the cars in Area B during a previous inspection on 7 December 2016. The photographs in Exhibit A confirmed this.
7. Mr Shah inspected the Land again on 6 February 2017. Mr Mifsud was present and gave his consent for Mr Shah to access Areas A and C. Photographs depicted a large volume of articles in Areas B and C. Mr Shah attested to not having seen some of these items before including a fifth unregistered car and dinghy. Articles were also placed in Area A. Mr Shah attested that some articles in Area A were stacked to a height greater than 1.25 m. These were not single items but multiple articles stacked on top of each other. The articles in Area A were also encroaching into Area C and left no space to the eastern fence. Mr Shah did not observe any baits in Area A.
8. Exhibit B comprised photographs taken by Mr Spooner Council officer on 25 July 2017, the date before the contempt hearing. The photographs were of Area B only and showed a considerable volume of articles including six unregistered cars. Articles referred to in Mr Shah's affidavit such as electrical appliances, a dressing table and dinghy were clearly identifiable in the photographs in Exhibit B.
9. Mr Mifsud gave oral evidence. Mr Mifsud stated that he did not deliberately purchase the unregistered cars presently located in Area B in defiance of the Court orders. He believed that he could park a car in his driveway. At all times he has not stored any items on Areas B and C. All the items in these areas have been placed there temporarily and are to be moved to Area A or the garage or shed in accordance with the Court orders.
10. In cross-examination Mr Mifsud stated he presently had six unregistered vehicles in Area B. He agreed that he would be unable to fit the cars currently within Area B into Area A. He said that the cars belonged to his children and he did not intend to keep them on his property permanently. Mr Mifsud was asked why he placed articles in Areas B and C if he intended on moving them into Area A or the garage at a later point. He maintained his position that the articles were in Areas B and C only temporarily. Mr Mifsud said that the garage was not full. The dressing table in Area B is to be donated to charity and is awaiting collection. Mr Mifsud disagreed that the volume of material in Area B had increased between the undertaking to the Court on 17 December 2016 and Council inspections in January and February 2017. Mr Mifsud stated that he had placed baits in Area A a couple of years ago.

Sentencing principles in contempt proceedings

1. As identified in Pt 55, r 13(1) of the SC Rules contempt of court is punishable by fine or imprisonment or both. I will be considering an appropriate fine in this case. Contempt of court can be described as technical, wilful or contumacious. Technical contempt is casual, accidental or unintentional. Wilful contempt occurs where there is deliberate disobedience without the intention of defying the court's authority. Contumacious contempt occurs if there is an element of deliberate defiance of the court's order, as identified in Hutley v Cosco [2016] NSWLEC 15 at [14] citing Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25].
2. In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 at [20] I set out 10 factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 per Dunford J at 185: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt.
3. These considerations have also been applied where relevant in Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88 at [17]-[19] and Hutley v Cosco at [32] amongst numerous other cases.
4. As to whether the sentencing considerations in s 21A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) apply in these proceedings, I note the following comments of Robson J in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19]: Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J) ('Queanbeyan')). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.
5. There is overlap between some of the factors identified in Wood v Staunton (No 5), the sentencing objectives in s 3A of the CSP Act and sentencing considerations in s 21A. I will consider these where relevant as a useful guideline.

Seriousness of contempt

1. The contempt identified in the statement of charge relates to four matters. Firstly, failing to remove articles from Areas B and C on the Land, prayers 1 and 2. Secondly, restraining storage or placement of articles on the Land outside Area A and not in the house, garage and garden shed, prayer 4. Thirdly, the storage of articles within Area A does not comply with the height and space requirements identified on the "P" Revised Plan, prayer 3 particulars (a), (b) and (c). Fourthly, baits were required to be placed and maintained in Area A by order 9(iii). No baits have been observed, prayer 3 particular (d).
2. The Council submitted that the contempt was deliberate which added to its degree of seriousness. The Council has received complaints from neighbours in relation to Mr Mifsud's activities, see par 14 above. I accept that the placement of articles on the Land has the capacity to create adverse health, amenity and safety (fire hazard) impacts on the occupants, adjoining residents and neighbourhood.
3. Firstly, the original Court orders requiring Areas B and C to be cleared were made in January 2015 and complied with for several months. Council officer inspections commenced again in September 2016 and continued on numerous occasions as detailed in the evidence of Mr Shah. The photographs in Exhibit A identify large numbers of items of various descriptions located in Areas B and C over the period 19 September 2016 to 6 February 2017. Items include ladders, appliances, paint brushes, chemical containers, delivery trolleys, household items, white goods, furniture, power tools, building materials window blinds, pedestal fans, fencing material, dressing table and mirror, bird cages and gardening equipment of various kinds. In addition a number of unregistered cars were placed in Area B over that period. At the time of the hearing Mr Mifsud had six unregistered cars in Area B. Mr Spooner's statement and photographs which became Exhibit B identify the large volume and variety of material in Area B the day before the sentence hearing.
4. Some items such as the dressing table, four cars and a high pressure hose remained in place in Area B for the whole period the subject of Mr Shah's evidence as identified in prayer 1 particular (a) of the statement of charge. Mr Mifsud's explanation that the dressing table was intended for charity collection does not negate the fact that this item remained on the property for a lengthy period in breach of the Court orders and the undertaking. Similarly an explanation that the unregistered cars were for his children does not negate the fact that their placement on Area B was a breach of the Court orders and the undertaking. Mr Mifsud's submission that many items were placed temporarily rather than stored is immaterial in that articles were not permitted to be placed in Areas B and C.
5. Secondly, Mr Shah attests to the volume of articles increasing between his visits on 6 January and 6 February 2017 including an additional car and dinghy in Area B, see par 18 above.
6. The large volume and nature of the material located in Areas B and C is an obvious breach of the orders. Mr Mifsud's mental state at the times of failing to remove articles or placing articles in Areas B and C is difficult to categorise. Mr Mifsud's failure to comply is not technical or accidental.
7. Whether his actions can be characterised as wilful or deliberate is not clear. Mr Mifsud appeared to understand in Court the terms of the orders, apart from submitting that he believed he could use his driveway in Area B to park a car. Locating six unregistered cars in Area B is clearly not complying with the Court orders and undertaking and these occupy far more land area than the driveway in any event. I accept Mr Mifsud's evidence that he did not deliberately buy six unregistered cars and place them on the Land in defiance of the Court orders. Such purchases were certainly misguided if Mr Mifsud considered they were a legitimate use of Area B as a driveway.
8. Mr Mifsud's rationalisation for the large volume of material identified in the Council's evidence as placed temporarily rather than stored appears misguided rather than deliberate. I would characterise his behaviour as akin to "failing to get his act together" over several months.
9. Thirdly, the Council officer Mr Shah's evidence of a site inspection on 6 February 2017 is that Mr Mifsud failed to comply with the size limitations imposed on the use of Area A. Mr Mifsud appeared to dispute in his oral submissions that he was in breach of the orders and undertaking in his use of Area A but did not provide any evidence to establish that. It is fairest to Mr Mifsud if I do not find that a breach of this aspect of the orders and the undertaking was deliberate. It is important that Mr Mifsud understands that he is required to comply with the size restrictions imposed by the orders and undertaking in relation to Area A.
10. Fourthly, Court order 9(iii) requires that baiting occur every three months with appropriate receipts to be provided to the Council. Mr Shah stated that he could not find any baits in Area A on 6 February 2017. Mr Mifsud stated that he had put baits there a couple of years ago. There is no evidence that he has maintained them. There is no evidence that receipts have been supplied by Mr Mifsud to the Council. I am prepared to accept that this was oversight rather than deliberate failure to comply with Court order 9(iii).
11. The contempt is of moderate seriousness in these circumstances.

Awareness of consequences

1. I agree with the Council's submission that Mr Mifsud could not have been under any misapprehension as to the requirements of the Court orders or the possible consequences of non-compliance. Mr Mifsud cleared and kept clear the required areas of the Land between January and March 2015 showing his understanding of the 9 January 2015 orders. The Council sent a letter to Mr Mifsud on 8 December 2016 following an inspection of the property the previous day and expressly referred to the possibility of commencing contempt proceedings. The undertaking entered into by Mr Mifsud on 17 December 2016 expressly acknowledges that it is enforceable as an order of the Court. The orders were amended on 22 December 2016 to allow Mr Mifsud to have a larger storage area with the expansion of Area A as shown in the plan annexed to this judgment.

Early guilty plea

1. Mr Mifsud pleaded guilty to contempt at the second mention of this matter before the Court and should have the benefit of an early plea of guilty in sentencing.

Contrition and remorse

1. Mr Mifsud has not expressed contrition or remorse expressly. His plea of guilty at a relatively early stage suggests he accepted his actions breached the Court orders and undertaking.

Deterrence

1. It is important to consider deterrence generally in relation to contempt of court orders. The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced. Kirby J in Pelechowski v Registrar of the Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] described it as follows: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result" [Registrar, Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 318; R v Sergiou (1983) 5 Cr App R (S) 227]. Obviously, the culpability of the contemnor is relevant to the order which must be made [Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98]. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.
2. Specific deterrence also appears warranted in the particular circumstances of this case where the matter was returned to the Court when issues with compliance with the January 2015 orders arose in late 2016 and an undertaking was given by Mr Mifsud to comply with amended orders in December 2016.

Penalty

1. Mr Mifsud was asked if he wished to provide evidence concerning his financial means. None was provided.
2. I impose a penalty of $3,500 for the contempt which I will reduce to take into account the plea of guilty to $2,000. A weekly penalty of $500 is imposed until compliance with the Court orders and undertaking is achieved. This will be stayed for 12 weeks to give Mr Mifsud time to purge his contempt by complying with the Court orders. He will need to remove all items including the cars in Areas B and C from the Land and/or store these in accordance with the Court orders in Area A and the garage within 12 weeks.
3. I also caution Mr Mifsud that compliance with the Court orders and undertaking requires that the storage of items in Area A be in accordance with the specified height and spatial restrictions. Regular baiting and provision of receipts to the Council confirming that baiting is occurring at three monthly intervals is also required.

Costs in contempt proceedings

1. The Council seeks its costs on an indemnity basis. Whether an award of costs is made on an indemnity basis is within the exercise of discretion of a judge. In Canterbury City Council v Mihalopoulos [2012] NSWLEC 72 I considered this issue at [46] as follows: As observed in GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths [see 3rd ed, pp 560-561], indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla (No 4) [2011] NSWSC 62 at [49] suggests these are commonly awarded. Dal Pont states at 547 - 549 (footnotes omitted): In EMI Records Ltd v Ian Wallace Ltd Megarry VC observed that special costs orders are needed in cases of contempt because 'nothing should be done to deter a person from bringing a contempt to notice of the court; and the risk of having to bear any of the costs will often be a real deterrent'. Contempt proceedings, it is reasoned, serve a public interest, such that a person who successfully brings these proceedings should not be left out of pocket. It has been judicially remarked, to this end, that it is a 'common or usual practice' to order that the contemnor pay costs on an indemnity basis, and the case law reveals multiple examples of indemnity costs awards in this context. But there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of the curial costs discretion. A relevant consideration is whether, aside from the costs order, a penalty has been imposed for the contempt. If no other penalty is imposed, the court may be more inclined to employ 'a heavy order for costs as a means of imposing something in the nature of a sanction'. If, say, significant fines have been imposed, the 'penal' or 'deterrent' aspect of a special costs order may have less justification. Also relevant is the plaintiff's conduct and level of success. ... That the contemnor has subsequently purged the contempt will not by itself guard against a special costs order if the contemnor's conduct has already caused the opponent to incur costs in bringing contempt proceedings.
2. The above extract confirms there is no "rule" concerning the awarding of indemnity costs in contempt cases. It is a practice commonly adopted. I will apply it in relation to Mr Mifsud given the entirely avoidable contempt he has been charged with and the necessity of the Council commencing contempt proceedings.

Costs in whole proceedings

1. Court order 12 of 9 January 2015 provided that in the event of a breach the costs order requiring Mr and Mrs Mifsud to pay $2,000 in Court order 10 would not apply and legal costs would become costs in the cause. The Council now seeks its costs of the whole of these proceedings on an ordinary basis. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. Mrs Mifsud is not before the Court and I am reluctant in her absence to make any order increasing her liability for costs. Mr Mifsud is before me and did not provide any submissions suggesting why the Council should not have its costs as now sought. In the absence of disentitling conduct the Council should have its costs of the whole proceedings paid by Mr Mifsud given the expense it has necessarily incurred.
2. Under s 7 of the Fines Act 1996 fines are payable within 28 days. An application for time to pay a fine can be made to the Registrar of the Court under s 10 of the Fines Act.
3. As an administrative matter, any costs and fines should be paid to the Registrar of the Land and Environment Court.

Orders

1. The Court makes the following orders: 1. Mr Mifsud is found guilty of the charge of contempt as identified in the statement of charge dated 6 March 2017 as amended on 26 July 2017. 2. Mr Mifsud is fined $2,000. 3. Mr Mifsud is fined $500 weekly payable on Monday of each week until the orders the subject of the charge have been complied with. 4. The Council is to promptly notify the Registrar and Mr Mifsud on a weekly basis when the Court orders are complied with or, if they are not complied with, each weekly period that the orders have not been complied with. 5. Mr Mifsud is to allow a duly authorised Council officer to inspect Areas A, B and C on a weekly basis with 24 hours' notice of inspection to be provided to him by email until the Court orders and undertaking have been complied with. 6. Orders (3), (4), and (5) are stayed for 12 weeks. 7. Mr Mifsud is to pay the Council's costs of these contempt proceedings on an indemnity basis. 8. Order (7) is stayed for six months. 9. Mr Mifsud is to pay the Council's costs of the whole of these proceedings as finalised on or about 22 December 2016 as agreed or assessed on the ordinary basis taking into account any amount previously paid under Order (10) of the Court orders dated 9 January 2015. 10. The exhibits be returned.

ANNEXURE TO JUDGMENT (158 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2017