Gerondal v Eurobodalla Shire Council

Evidence on sentencing - purging of contempt 4The Council relied on the affidavit of Mr Cumming dated 8 July 2011 in relation to whether the order has been complied with since delivery of Gerondal No 5 on 24 June 2011. This evidence is relevant to whether the contempt has been purged by Mr Gerondal, a relevant consideration in sentencing. At Mr Cumming's last inspection on 6 July 2011 referred to in his affidavit, he identified that a large number of items the subject of the contempt charges remained on the property. 5Mr Gerondal was required to file and serve evidence by 27 July 2011. At the hearing Mr Gerondal was given leave to tender photographs taken by him dated 28 and 29 July 2011 (exhibit C) which showed that a number of items had been removed from the property. Mr Cumming provided additional evidence in reply to the late evidence of Mr Gerondal which included photographs taken by him on 29 July 2011 and 31 July 2011 during inspections from outside the property on both days. The Council's counsel stated that the Council accepted that the items referred to in charges 1 (concrete pipes), 3 (treated timber poles) and 9 (scaffolding) in the statement of charge on 14 December 2010 had been removed by Mr Gerondal. In Mr Cumming's view provided in oral evidence about the recent photographs he took, material relevant to charges 4 (metal sheeting), 5 (corrugated iron) and 6 (unused bricks and masonry) remained on the property. Mr Gerondal disputed that a number of items identified in the photographs taken by Mr Cumming were the subject of the Court order and argued that these were used variously for keeping firewood dry, a dog kennel, a cattery and as the base for a kiln and were exempt from the order and therefore these charges. 6After lunch the Council's counsel said he was instructed in the interests of expeditiously resolving the matter, and without accepting the submissions of Mr Gerondal that the corrugated iron, metal sheeting and unused bricks and masonry were in use or were not present on the property at the time of my order in September 2009, not to proceed further in relation to any of the items identified in the photographs taken by Mr Cumming on 29 and 31 July but for one collection of items. Metal sheeting identified by a circle to the right in photograph F taken on 31 July 2011 (exhibit 9) should be removed within 14 days. After further negotiation it was agreed between the parties that if the Court makes an order that the whole of the material circled on the right of the photograph F taken on 31 July 2011 (exhibit 9) being metal sheeting is to be either used lawfully for the repair of the roof or removed from the property entirely by 31 August 2011, the Council would not continue to press for any penalty by way of a weekly fine.

Consideration 7It follows from the parties' sensible agreement recorded in the previous paragraph that there is no need to consider as a sentencing matter whether a weekly fine should be imposed as a penalty. The Council is not seeking such an order. If the intended order is not complied with the Council has liberty to apply for further orders. I sincerely hope that Mr Gerondal complies with the order to be made. If he does there will be no need for this matter to be returned to Court and he will not face the potential risk of a penalty being imposed on him. 8While the usual sentencing considerations do not need to be weighed up as there is presently no penalty as an incentive to enforcement sought, it is appropriate for the Court to enter a conviction for contempt as part of the sentencing process for the contempt found proved in Gerondal No 5 . It is important to record why a conviction for contempt ought be made in this case. The purpose of punishment for contempt of a court order has been considered in a number of cases including Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 by Lloyd J at [20] - [23] cited in Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 by Biscoe J at [9]. The purpose includes the protection of the administration of justice by ensuring that court orders are enforced, as non-compliance constitutes an interference with the administration of justice. Compliance with court orders is an important consideration in relation to contempt and justifies entering a conviction. The lengthy history of this matter which has required contempt proceedings being brought to finally achieve compliance with a court order is highly relevant in this context.

Evidence on costs 9The Council seeks its costs of the contempt proceedings, commenced on 17 December 2010, on an indemnity basis. It relied on an affidavit of Ms Simmons, solicitor for the Council, dated 15 July 2011 which attached correspondence including settlement offers made to Mr Gerondal in the course of the proceedings. On 16 July 2010 during the hearing before Sheahan J, the transcript records Mr Larkin stating that the Council would remove the items subject of the order if Mr and Mrs Gerondal both pay for it and permit it (TS9.32). On 25 January 2011 Ms Simmons caused a letter to be sent to Mr Gerondal containing an open offer to remove the items the subject of the order, provided inter alia, that he paid for it and to settle the contempt proceedings. On 1 April 2011 Ms Simmons caused a further letter to be sent containing a revised open offer to settle the proceedings stipulating inter alia that Mr Gerondal remove a reduced list of items within 28 days of acceptance of the offer and failing that, he agree to the Council removing those items provided he paid for it. It additionally provided that the Council would not seek its costs of the proceedings if the offer was accepted by 5:00pm on Monday 4 April 2011. This offer remained open as at 6 April 2011 when the matter was listed for hearing. On 24 June 2011 when judgment in relation to the charge of contempt was delivered, Ms Simmons recalls the Council's counsel saying he was instructed to renew the open offer that the Council would remove the items if Mr Gerondal paid for it. As at 15 July 2011 Ms Simmons confirms that she had not received any communication from Mr Gerondal accepting any of the Council's offers. 10An affidavit of Ms Lenson, Council Manager of Environmental Services, dated 1 December 2010 sworn before the contempt proceedings were commenced was also read in part (par 3, 19, 22, and par 30 - 41 which includes annexures B, D, G, J - M) on behalf of the Council. On 2 September 2010 Ms Lenson sent an email to Mr Gerondal informing him of inspections that were to be conducted at the property. On 3 September 2010 Ms Lenson sent an email to Mr Gerondal advising that Mr Usher, Council Director of Strategic, Development and Environmental Services did not receive the email Mr Gerondal thought he sent on 31 August 2010 and requested he forward the email or written advice with regard to compliance with the order which was required by 30 August 2010. Ms Lenson told him to provide details of his progress in complying with the order including dates for the removal of items. The email confirmed that Mr Gerondal and Ms Lenson had arranged to meet on 10 September 2010 to discuss this matter. 11On 9 September 2010 Ms Lenson sent a further email to Mr Gerondal in response to his email of 5 September 2010 advising that insufficient information had been provided to the Council to determine his intentions as to compliance with the order and that the Council could not grant the requested extension of time on a Court order. In that email Ms Lenson indicated that the Council would conduct a further inspection on 10 September 2010 to ascertain compliance with the order. In the event that Mr Gerondal failed to comply with the order Ms Lenson confirmed that the Council would be seeking legal counsel with a view to commencing contempt proceedings. Mr Gerondal was invited to provide the Council with documentation to substantiate any claim for removal of the materials from the premises and a specific timetable by 10 September 2010. There was further correspondence between Ms Lenson and Mr Gerondal from 10 September 2010 to 15 September 2010 which postponed the meeting of 10 September 2010 to 16 September 2010. Mr Gerondal then wished to cancel that meeting. Ms Lenson carried out an inspection of the property with Mr Cumming on 16 September 2010. 12This evidence was relied on to identify the steps taken by the Council in the lead up to the commencement of the contempt proceedings. Mr Gerondal relied on annexures F to H of Ms Lenson's affidavit which includes an email he attempted to send to Mr Usher on 31 August 2010 and forwarded to Ms Lenson on 5 September 2010. Mr Gerondal stated that "only one [company] was found suitable but is unavailable until early next week" and requested further time to comply with the order in respect of the poles and concrete pipes. In the facsimile to Ms Lenson sent on 9 September 2010 Mr Gerondal advised of his difficulty in engaging companies to remove heavy items from his property including poles, lists companies which could not remove the heavy items from the property by 30 September 2010, and states that he and his wife "continue to pursue the market place for O H & S compatible transporting service of the remaining items."

Council's submissions on costs 13Costs in contempt proceedings are a special category of costs and are often awarded on an indemnity basis per ASIC v Sigalla (No 4) [2011] NSWSC 62 at [49]. In civil contempt proceedings the awarding of costs may be the only order imposed and to do so on an indemnity basis underscores the serious nature of such proceedings. That is part of a general principle in relation to costs in contempt proceedings whereby they can be awarded under a court's general costs powers. Alternatively, costs in Class 6 proceedings are provided for under s 49(4) of the Crimes (Appeal and Review) Act 2001 which permits the Court to order costs as seem just. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant. 14In Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Sheppard J identified at [5] circumstances where indemnity costs have been awarded and these include where groundless contentions are maintained. There are numerous examples of groundless allegations being made in Mr Gerondal's submissions and evidence at the contempt hearing where he argued that because the order referred to four pipes and there were three he could not remove these until a fourth pipe was found, aluminium was not metal, masonry that had concrete on it because it had been used in the past was not unused masonry, and the double jeopardy argument. Mr Gerondal's conduct greatly lengthened the proceedings which commenced on 17 December 2010, and resulted in three orders extending the time to comply with the original order which was never complied with. The contempt proceedings were reasonably commenced as can be seen from the affidavit of Ms Lenson. Further, as Ms Simmons' affidavit demonstrates there were several attempts to settle the proceedings, all unsuccessful. The offers made were reasonable. 15Whether a party has means to pay a costs order is not a relevant consideration as to whether any order for costs ought be made including on an indemnity basis. In Environment Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 at [32] Lloyd J, referring to Kirby J's statement in Pelechowski v The Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at [149], stated that "the focus of attention must not be solely on the contemnor, but also be addressed to the community at large and to deter others who might consider acting in a similar way. The contemnors in the present case must be punished in an emphatic way." The defendants to the contempt charge in that case, Ableway Waste Management Pty Ltd and Mr Tsaur, were insolvent and bankrupt respectively, and did not have means to carry out the Court's orders or pay a monetary penalty.

Mr Gerondal's submissions on costs 16Mr Gerondal sent an email dated 21 July 2011 containing submissions critical of the settlement offers made by the Council as referred to in Ms Simmons' affidavit on the basis they were very costly given that the Council was offering to remove items and charge Mr Gerondal a great expense, would be like placing a fox in the chicken coop, and such an arrangement was an infringement of his human rights. The Council by its conduct has prolonged the proceedings raising issues at the hearing of whether these were civil or criminal contempt proceedings and at this sentencing hearing seeking to raise matters of clarification of Gerondal No 5 . Nor did the Council officer Mr Cumming recognise the efforts to remove the various items made by Mr Gerondal over many months from the property. Mr Gerondal submitted that the Council should pay his costs as it has wasted his time. If the orders of Biscoe J (made on 12 February 2010) to reach agreement could have been achieved there would have been no need for the proceedings to continue any further. 17Mr Gerondal also made unsubstantiated claims from the bar table that the Council interfered with the contractors Mr or Mrs Gerondal contacted to try to get them to remove the larger items from the property. The correspondence sent by Mr Gerondal attached to the affidavit of Ms Lenson was relied on to show that efforts were made to try to contact contractors to remove items. 18Mr Gerondal stated that he was of limited means, as could be seen from an application for fee waiver made by him to the Court. This was not before me as it was not on the Court file in accordance with the usual practice of keeping such material in the registry. Mr Gerondal had not approached the registry to ask that this information be available to the Court. Mr Gerondal referred to [22] in Gerondal No 5 where I summarised his evidence of his income, inter alia.

Consideration on costs 19Costs are sought by the Council on an indemnity basis under general costs principles applying to contempt proceedings which apply in this Court. As observed in GE Dal Pont, Law of Costs , 2nd ed (2009) LexisNexis Butterworths, indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla suggests these are commonly awarded. Dal Pont states at 547 - 9 (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. 20Whether a further source of the power to award costs is found alternatively in s 49 of the Crimes (Appeal and Review) Act was also raised. I am not aware of any authority where costs in contempt proceedings have been awarded under that section and perhaps the issue has not arisen before in Class 6 proceedings. As I am not convinced that an appeal to which the Crimes (Appeal and Review) Act applies includes contempt proceedings I prefer to consider costs in this case under the general principles for costs applied in contempt proceedings referred to in the previous paragraph. 21I will first consider whether costs ought be awarded. The information in the affidavit of Ms Lenson identifies that it was reasonable that contempt proceedings were commenced against Mr Gerondal by the Council on 17 December 2010. There was no information forthcoming from Mr Gerondal about what steps he had taken to remove items the subject of the Court order by 30 August 2010 despite several requests by the Council identified in the letters and emails attached to her affidavit (dated 3 September, 9 September and 10 - 15 September 2010) that he tell them what his intentions in relation to compliance were. The Council accepted by the time of the hearing that Mr Gerondal had removed some of the items the subject of the order being steel girders and beams, water pipes, window frames and timber and did not press the charges for contempt relating to those items. 22Before contempt proceedings were commenced, Mr Gerondal was granted three extensions of time to comply with the original order made by me which required removal of the items identified in the order by 25 December 2009 (on 12 February 2010 until 1 June 2010 by Biscoe J, on 22 April 2010 to 30 June 2010 by Sheahan J and on 16 July 2010 until 30 August 2010 by Sheahan J - see chronology in Gerondal No 5 ) and these orders were not complied with. The Council finally moved to enforce the last order made by Sheahan J. Mr Gerondal has had ample opportunity to remove the items the subject of the orders over a period of 19 months (from 25 December 2009). The contempt proceedings were reasonably commenced given the clear non-compliance with the order made by Sheahan J. Further, the Council was successful as I made findings of contempt in relation to six charges in Gerondal No 5 on 24 June 2011. 23It is also telling that only a few days before the sentencing hearing on 1 August 2011 Mr Gerondal finally removed several of the major items still outstanding being the treated timber poles, the concrete pipes and the scaffolding (charges 1, 3 and 9). The necessity of continuing the proceedings is demonstrated by the lengthy time taken by Mr Gerondal to comply with the Court order. 24I do not consider the Council has caused in any way the prolongation of the proceedings and these have been conducted in as orderly a fashion as possible in the circumstances. That no agreement could be reached following the orders of Biscoe J does not reflect poorly on the Council. It has been successful given my finding of contempt on six charges. That the Council sensibly determined after lunch on 1 August 2011 not to press the remaining items under charges 4, 5 and 6, but for some metal sheeting (charge 4) the subject of the intended order, is not disentitling conduct but reflects a commonsense approach to try and finalise unnecessarily lengthy proceedings. There is no disentitling conduct of any kind on the Council's part to suggest a costs order in favour of Mr Gerondal ought be made, even assuming that he was entitled to legal costs. I am not aware that he has been legally represented at any stage of the proceedings. 25The affidavit of Ms Simmons attaches several offers of settlement made to Mr Gerondal by the Council even after the commencement of the contempt proceedings which I consider are reasonable offers in the circumstances. Mr Gerondal's criticism of the offers is not reasonable. This is further evidence supporting a finding that the Council has acted reasonably in this matter. 26In relation to means to pay, there is no information before me of Mr Gerondal's means. He referred to an application for a fee waiver being made by him to this Court but did not have a copy. No such application was located after inquiry in the Court registry in the course of the hearing. I summarised the evidence Mr Gerondal gave concerning his income at [22] of Gerondal No 5 . I do not have a clear appreciation of Mr Gerondal's assets and liabilities. His evidence previously is that he has a limited income. In any event, I do not consider his means to pay a substantial costs order is a relevant consideration in the circumstances of a contempt finding, applying the reasoning of Lloyd J in Ableway which concerned a bankrupt defendant in contempt proceedings. Mr Gerondal did not effectively comply with the order until immediately before the sentencing hearing. The importance of compliance with court orders and their enforcement is identified above at par 8. Those observations are also relevant to the imposition of a costs order particularly where there is no penalty to be imposed despite a finding of contempt by Mr Gerondal on six charges. 27For all these reasons, the Council should be awarded its costs of the contempt proceedings. 28The Council seeks its costs on an indemnity basis. As already identified, that no penalty is to be imposed at this stage in relation to the proven contempt charges is one reason why indemnity costs might be ordered, see Dal Pont above. While the order has now generally been complied with that occurred immediately before the sentencing hearing by which time the Council had incurred substantial costs in these contempt proceedings, including the finding of additional affidavit material. The circumstances of the proceedings should be considered to see if these have been unduly prolonged or hopeless arguments maintained, some of the circumstances referred to in Colgate-Palmolive . The matters to be considered in determining indemnity costs are not closed. The unnecessarily lengthy history of the order giving rise to the commencement of proceedings is clear when viewed as a whole. The first order Mr Gerondal had to comply with specified 25 December 2009 and three extensions of time were granted but not complied with, necessitating the commencement of contempt proceedings. The arguments finally mounted by Mr Gerondal in resisting the contempt charges, par 12 above, as to why the order was ambiguous and unclear were manifestly groundless as shown by their rejection in Gerondal No 5 at [56] - [58]. These factors suggest that if the same effort spent on resisting the order had been spent on removing the items the subject of the order these proceedings could have been avoided. An award of costs on an indemnity basis is justified. 29I consider that Mr Gerondal should pay the Council's costs of these contempt proceedings on an indemnity basis and will so order.

Orders 30The Court makes the following orders: 1.The Defendant is convicted of the charge of contempt in relation to charges 1, 3, 4, 5, 6 and 9 in the statement of charge filed on 17 December 2010. 2.The Defendant is to ensure that the whole of the material circled on the right of photograph F taken on 31 July 2011 (exhibit 9) being metal sheeting relating to charge 4 in the statement of charge, is to be either used lawfully for the repair of the roof or removed from the property entirely by 7 September 2011. 3.The Council has liberty to restore the matter to the list if order 2 is not complied with. 4.The Defendant is to pay the Council's costs of these contempt proceedings on an indemnity basis. 5.Exhibits are to be returned. 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: 10 August 2011