HAWKESBURY CITY COUNCIL v FOSTER and ANOR

Court of Appeal (NSW)|1997-08-22|Before: Mason P, Pearlman J

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and SHELLER JJA

Fines and Penalties Act, 1903 s5 - Local Government Act, 1993 s694(1) - contempt

definition "under" an Act.

The appellant and the first respondent had sought a restraining order from the Land and Environment Court against the second respondent, Mushroom Composters Pty Ltd. The order was granted and later breached. The appellant and first respondent then sought orders for the second respondent to be punished for contempt. The second respondent pleaded guilty and was fined. The council then made application seeking the payment of the whole of the fine pursuant to s694(1) of the Local Government Act 1993; and alternatively, to be paid a moiety of the fine pursuant to the Fines and Penalties Act, 1903. That application was dismissed.

(1) Meagher, Sheller JJA, Mason P dissenting: the fine imposed was not one "under" an Act for the purposes of s694(1) of the Local Government Act.

(2) Meagher, Sheller JJA: the trial judge in not awarding a moiety of the fine pursuant to the Fines and Penalties Act properly exercised her discretion.

Mason P At issue in this case is the right of a Council to recover all or part of a fine imposed by the Land and Environment Court for a contempt of an order, being an order granted in proceedings initiated by the Council.

On 20 May 1993 Pearlman J, Chief Judge of the Land and Environment Court, ordered that the second respondent, Mushroom Composters Pty Ltd ("Mushroom Composters") be restrained from using or suffering or permitting to be used certain premises at Ebenezer so as to interfere with the amenity of the neighbourhood in respect of smell!. The order was suspended for 12 months, so that it became effective on May 1994. The order had been sought by Hawkesbury City Council ("the Council"), the appellant in this appeal, and by Mr Foster (representing the Ebenezer Concerned Residents Committee) who is the first respondent in the appeal. The basis of the claim for an injunction was Mushroom Composters' breach of conditions of a development consent?. Despite the suspension of the injunction, Mushroom Composters remained in breach of the development consent and the order after 20 May 1994.

Each of the Council and Mr Foster then sought orders, by separate notices of motion, that Mushroom Composters be punished for its contempt of the order made on 20 May 1993. Mushroom Composters pleaded and was found guilty of

See Hawkesbury City Council v Mushroom Composters Pty Ltd (1993) 80 LGERA 30 at 45.

The consent had been granted in 1978 by the Colo Shire Council, which was amalgamated in 1981 with Windsor Municipal Council to form Hawkesbury Shire Council. In 1989 Hawkesbury Shire Council became Hawkesbury City Council.

contempt, and fined $80,0003. There was also an additional weekly fine for continuing default, but this did not occur. It was ordered that the fine be paid to the Registrar of the Land and Environment Court within 28 days+. The $80,000 fine was both deterrent and coercive in intent and operation and it related to what was described as a wilful and deliberate breach of the earlier order.

Both the Council and Mr Foster then made application to be paid a moiety of the $80,000 fine pursuant to the Fines and Penalties Act 1901. The Council successfully opposed Mr Foster's application, Mushroom Composters taking no part in that stage of the proceedings5. Some of the reasoning is relevant to the Council's later unsuccessful application, and I will return to it.

The Council then brought its own application seeking, payment of the whole of the fine (pursuant to s694(1) of the Local Government Act 1993); and, alternatively, a moiety of the fine (pursuant to s5(3) of the Fines and Penalties Act 1901). This application was also unopposed, but it too was dismissed®. From that dismissal the Council appeals to this Court.

No question arises as to the Council's standing to initiate contempt proceedings, even criminal contempt proceedings, consequent upon the breach of the Court's order7. Nor is there any doubt about the power of the Land and Environment Court to punish such contempt by way of fine'. However the right to initiate a prosecution is distinct from the right to recover any fine imposed on the convicted offender. In Bradlaugh v Clarke® the Earl of Selborne LC referred to the "incontestable proposition of law" that

"where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of a party grieved, and the offence is not against an individual, it belongs to the Crown, and the Crown alone can maintain a suit for it.'... It rests on a very plain and clear principle. No man can sue for that in which he has no interest; and a common informer can have no interest in a penalty of this nature unless it is expressly, or by some sufficient implication, given to him by statute. The Crown, and the Crown alone, is charged generally with the execution and enforcement of penal laws enacted by public statutes for the public good, and is interested, jure publico, in all penalties imposed by such statutes; and therefore may sue for them in due course of law, where no provision is made to the contrary. The onus is upon a common informer to shew that the statute has conferred upon him a right of action to recover the particular penalty which he claims. "

Hawkesbury City Council & Anor v Foster, Land and Environment Court, Pearlman J, unreported, 4 August 1995.

This was pursuant to the express direction of Pt15 r3(1) of the Land and Environment Court Rules 1980. R3(2) provides that the registrar shall pay into the Consolidated Revenue Fund all moneys paid to him on account of any fine imposed by the Court. (The corresponding rule in the Land and Environment Court Rules 1996 is Pt17 12.)

See Hawksbury Civil Council & Anor v Mushroom Composters Pty Ltd (No 2) (1996) 89 LGERA 132

Hawkesbury City Council & Anor vy Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA

See X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 580-1.

See Land and Environment Court Act 1979, s67(d); Land and Environment Court Rules 1980, Pt6 rl; Supreme Court Rules Pt55 r13.

URJ HAWKESBURY CITY COUNCIL v FOSTER and ANOR (Mason P) 3

There is no magic in the expression "common informer". It means no more than a private person suing for private benefit to recover a statutory penalty. The expression "common informer" is only used to distinguish that person from a state or official informer, such as the Attorney General or a Director of Public Prosecutions!0.

There have been few more detested figures in the law than the common informer. In 1589 a statute of Elizabeth deplored that common informers "daily unjustly taxed and disquieted" the Queen's subjects!!. Coke described them as "viperous vermin" who under the mantle of law "did vex and pauperize the subject... for malice or private ends'!2. A nineteenth century Treatise on the Police and Crimes of the Metropolis! referred to them as "unprincipled pettifoggers", whose office was a nuisance and "an instrument of individual extortion, caprice and tyranny". Nevertheless, in Radzinowicz's words!4, "the demand for their services remained as constant as the criticism of their activities was unrelenting". Over many centuries from about the time of Edward III statutes conferred the right to enforce and recover all or part of a penalty, especially in relation to what would today be regarded as regulatory offences. The qui tam action came to the Australian colonies. An early reported instance is Ex parte Pearce!5. An authority that illustrates the capacity of an official such as a police constable to assume the mantle of a common informer is Royce v O'Hehir!6.

The judgment of Rowlatt J in Orpen v Haymarket Capitol Ltd reflects the traditional attitude to the common informer, as well as demonstrating the perceived "usefulness" of that figure. He described the proceedings before him as!7:

".. a penal action, a form of proceeding invented by Parliament for ensuring that laws should not be a dead letter. In order to provide that laws should not become a dead letter by reason of the circumstance that no prosecutor, official or private, comes forward, Parliament has in these cases enlisted the motive of private greed to ensure that the offender shall be made to smart for his offence, by enabling any person to come forward and claim certain sums of money which, in many cases, as in this case, may be large. Such persons are called 'common

In 1852, s15 and sl6 of the Acts Shortening Act of New South Wales!8 addressed the subject in general terms. These were the provisions effectively reenacted in s4-s6 of the Fines and Penalties Act 1901. In White v Phipps!9 the Full Court of the Supreme Court of New South Wales ruled the Fines and Penalties Act inapplicable to proceedings for the recovery of a penalty under the Local Government Act 1919. However, the effect of this decision was reversed in 1935, when s591(d) was added to the Local Government Act 1919. This

See Tranton v Astor (1917) 33 TLR 383 and 385. The history of common informers is recounted in L Radzinowicz, A History of English Criminal Law (1956) vol 2 chapter 6 and by the Law Reform Committee of South Australia in its Ninety-Fourth Report relating to Qui Tam and Penal Actions and Common Informers (1985).

provision made it clear that proceedings for the recovery of penalties under that Act could be initiated by any person whomsoever. Its counterpart is s684 of the Local Government Act 1993.

Since, however, the Fines and Penalties Act delivers only a moiety of a fine to the informer, the Council's preferred position is reliance upon s694(1) of the Local Government Act 1993. If applicable, this section would see the whole of the fine imposed on Mushroom Composters paid to the Council.

"694(1)Any penalty, fine or forfeiture under any Act recovered in proceedings instituted by or under the direction or on behalf or for the benefit of the council is:

(b) to be allocated by the council to the council's consolidated fund."

The provision appears in virtually identical form in s640(1) of the Local Government Act 1919. Indeed, the concept of a local government council recovering penalties for infractions of local government legislation (otherwise than in reliance upon the Fines and Penalties Act or its predecessor) may be traced back through s191 of the Local Government Act 1906, s209 of the Sydney Corporation Act 1902 and s254 of the Municipalities Act 1898. It should be observed that, in those three statutes, the right was restricted to penalties incurred under the enactment in question or any subordinate legislation made thereunder. As with the more general provisions relating to the recovery of fines by common informers, these enactments were undoubtedly passed in order to provide incentive for the enforcement of the social policies which they enforced and regulated. Although the 1919 and 1993 Local Government Acts departed from their predecessors in extending the Council's right of recovery to any penalty, fine or forfeiture "under any Act", there remained the need to show that the relevant proceedings were capable of being instituted or commenced "by or under the direction or on behalf or for the benefit of the council". Such a limitation serves as a practical and legal restraint upon the Council acting as a speculative litigious busybody, although it would not preclude two or more councils competing for payment of the one fine. The question of the scope of s694(1) in this context does not arise in the present case, although it is obviously capable of arising in relation to fines imposed for offences under the Local Government Act itself29.

In the proceedings in which the Council opposed Mr Foster's application for a moiety of the $80,000 fine, one argument advanced by the Council was that s694(1) was an exclusive mandate which required the fine to be paid to the Council itself. Pearlman J rejected this argument, holding that s694(1) has no application to a fine imposed by the Land and Environment Court by way of penalty for contempt. She said that s694(1) relates to a fine or a penalty which is "prescribed or fixed or provided for in the particular Act in question". (Her Honour gave as an example the penalty which is prescribed in s626 of the Local Government Act for failure to obtain council approval for building work.) By contrast, her Honour held, the Land and Environment Court Act 1979 ("the Court Act") does not prescribe, fix or provide for a fine for contempt of the Court's orders:-

URJ HAWKESBURY CITY COUNCIL v FOSTER and ANOR (Mason P) 5

"What the Court Act does is permit the Court to enforce its orders by punishing a person who is proved guilty of contempt. The appropriate punishment is a matter for the Court in the particular circumstances by application of the Supreme Court Rules (made applicable by s67(d) and by Pt6 rl of the Land and Environment Court Rules 1980). It may involve committal to prison, or a fine, or both (Pt55 r13 Supreme Court Rules) or, some cases, sequestration of property (Pt42 r6 Supreme Court Rules).

Her Honour found support for this view of s694(1) by contrasting the different language found in s5(3) of the Fines and Penalties Act 1901. The 1901 Act speaks (in s5(3)) of an Act "imposing or authorising the imposition" of a fine, penalty or forfeiture. The learned judge held that "no fine is imposed by the Court Act for contempt", and that the "more apposite phrase to describe a fine imposed by the Court as punishment for contempt is that it is a fine the imposition of which is 'authorised' by the Court Act". She noted that different views had been taken about s694(1) and its predecessor by other judges of the Court2!. This interpretation of s694(1), used to rebut the Council's opposition to Mr Foster's application for a moiety of the fine, was applied directly against the Council in the later proceedings when it was the applicant to be paid the fine. It is from this later decision that the Council appeals, although the reasoning is more fully set out in the earlier judgment. The State of New South Wales intervened to support the judgment below and provide a contradictor.

The Council submits that the fine recovered in relation to the contempt was "under" the Court Act. I agree.

The reference to "proceedings" in s694(1) makes patent that the provision is addressing fines, penalties and forfeitures imposed by a court. That power must itself be sourced in statute, unless the court is exercising some truly inherent power.

The Land and Environment Court is a statutory court of limited jurisdiction. In these circumstances it may be misleading to speak of any inherent jurisdiction, if the latter term is used to suggest jurisdiction or power not implied in its constating Acts22. Of course, the Court is made a superior court of record, and this status carries with it broad powers to enforce its orders and to suppress any abuse of its processes2?3, as well as other powers said to "inhere" in superior courts?4. However such status is itself a direct consequence of the description of the Court in those terms with all of the jurisdiction conferred by and through the Court Act. In any event, the Court's power to punish contempt of its own orders is stated expressly in s67(d) of the Court Act. That provision confers on the Court the powers vested in the Supreme Court in respect of

"the... punishment of persons guilty of contempt, or of disobedience to any order made by the Court.... "

The Council of the City of South Sydney v Forte Enterprises Pty Ltd (Bignold J, 15 July 1993, unreported) an order was made in a council's favour under s640 of the 1919 Act. Cf also Fairfield City Council v Tisonu Pty Ltd (Cripps J, 18 May 1988, unreported) where Cripps J declined to award a moiety of a fine under the Fines and Penalties Act, on discretionary grounds.

R v Forbes; Ex parte Bevan (1972) 127 CLR | at 7; Parsons v Martin (1984) 58 ALR 395 at 400 1; Grassby v The Queen (1989) 168 CLR 1 at 15-16; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573. Cf Logwon Pty Ltd v Warringah Shire Council (1993) 82 LGERA 158.

This incorporates by reference the power of the Supreme Court which includes (expressly) the power to fine25.

The appellant submits that "under" in s694(1) means "pursuant to" or "authorised by" an enactment, and that this requirement is satisfied by the source of the Court's power to impose a fine that has just been recounted.

This meaning of "under" is widely established. Thus, in Evans v Friemann26 an administrative decision was held to have been made "under an enactment" for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) when it was shown to have been made "in pursuance of" or "under the authority" of certain regulations. In Minister for Immigration and Ethnic Affairs v Mayer27 all justices appear to have accepted that test of whether a decision is made "under an enactment" in that context. It was sufficient that the enactment was the source of the relevant power exercised by the administrator. Indeed, the majority of the Court held it sufficient that legislation should be the implied source of the relevant power. In the same context, it is relevant to note that a power will be treated as exercised under a federal enactment even though its content is defined in State legislation, so long as it is a federal law (such as the Judiciary Act) that gives effect to the State legislation: see Lamb v Moss?8.

In the context of s76(ii) of the Constitution2® and federal enactments using the phrase "matter arising under this Act", the High Court has asked whether the right or duty that is sought to be enforced owes its existence to a provision of the Act or depends upon Federal law for its enforcement30.

Similar reasoning may be found in cases addressing the meaning of "under an Act", or similar phrases, in State legislation. Thus, in Young v Registrar, Court of Appeal (No 3)3! the discharge of an imprisoned contemnor pursuant to an express power under the Supreme Court Rules32 was held to be discharge "under... any... Act". The fact that the Supreme Court Act authorised the making of the Supreme Court Rules was sufficient. In Victrawl Pty Ltd v Telstra Corporation Ltd33, Deane, Dawson, Toohey and Gaudron JJ suggested that:

"Tt is at least arguable that the prima facie meaning of the word 'under' in a phrase such as 'a claim for compensation under a law' is 'having its source in' or 'arising under' the relevant law."

As with all matters of statutory interpretation, context may be critical. And care is needed in applying statements in earlier judgments.

In the present context it is relevant to observe that it is the "penalty, fine or forfeiture" which must be "under any Act", as distinct from the proceedings for its recovery. Nevertheless, the fine imposed in this matter may fairly be said to have its source in the Court Act, in the sense that s67(d) of that Act provides the authority for the Court to impose it. (To say that authority may also be traced to

(1981) 53 FLR 229, followed in Australian National University v Burns (1982) 64 FLR 166.

Which speaks about matters "arising under any laws made by the Parliament".

See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Re McJannet; Ex parte the Australian Workers' Union of Employees (1997) 146 ALR 569.

(1993) 32 NSWLR 262. See also R v Clyne; Ex parte Harrap [1941] VLR 200; Northern District Ratio Taxicab Co-operative Ltd v Commissioner of Stamp Duties [1975] 1 NSWLR

URJ HAWKESBURY CITY COUNCIL v FOSTER and ANOR (Mason P) 7

the power which a superior court has to give effect to its orders is, in my view, an alternative path to the same position, because it is the statutory designation of the Land and Environment Court as a superior court that confers such power by necessary implication34.)

Pearlman J would limit s694(1) to a fine, penalty or forfeiture "prescribed or fixed or provided for in the particular Act in question". I have two difficulties with that proposition. First, it gives no weight to the use of the word "under" with its well established general meaning. Secondly, it appears to ignore the force of the words "any Act" and the frequently encountered phenomenon of incorporation by reference. One example of this phenomenon is pertinent to the present case. Indeed it is found in the very example offered by her Honour as the paradigm situation falling squarely within s694. Pearlman J cited s626 of the 1993, a provision which penalises the failure to obtain council approval for building work. This section imposes penalties, but in terms of multiple "penalty units". One has to go to s56 of the Interpretation Act 1987 to discover the monetary amount of the penalty.

It is no answer to suggest that contempt is in some way quasi-criminal35 and therefore distinguishable on that account from true offences. This is because the phrase "penalty, fine or forfeiture" obviously encompasses civil as well as criminal sanctions. Nor is it an answer to point to the fact that the "penalty" for contempt is at large36. $694 does not, in my view, require the amount of the penalty, fine or forfeiture to be sourced in "any Act".

I have considered whether one should approach a provision such as s694(1) with some leaning towards a strict or narrow construction. However, I see no reason to approach the matter with any predisposition37. After all, what is at issue here is not the imposition of the fine, but who recovers it. Since it is legitimate to see provisions such as 694 (and common informer statutes generally) as serving the function of encouraging people to come forward and shoulder the burden and risks of enforcing the statute law, I see no reason to read down s694 by inserting or implying words which do not appear in the section. In this instant context there is every reason why councils should be encouraged to police effectively compliance with planning and building approvals.

Unlike her Honour, I find no assistance in comparing the language of s694 with that found in the Fines and Penalties Act. To my mind, the distinction between "imposing" and "authorising the imposition of" lacks substance38. In any event "imposing" is not the word found in s694. Such limited experience that I have had with the practice of parliamentary counsel, and the pressures under which they perform their functions, leads me to be highly doubtful of any conscious advertence, let alone distinction, having been drawn between s694 and its predecessor on the one hand and s5(3) of the Fines and Penalties Act on the other.

The State submits that s694 has no application outside cases where the party mulcted has offended the Council per se. To the extent that I fully comprehend what is suggested by this expression in this context, I do not agree. I see no relevant distinction between the fine in the present case, and that imposed in the putative proceedings involving breach of a provision of the Local Government

Cf also Young v Registrar, Court of Appeal (No 3) discussed above.

Act such as s626. If there is any distinction it favours the Council which, after all, was the party which obtained the court order which Mushroom Composters disobeyed.

Next, the State submits that the contempt is a "civil contempt', albeit that the fine was imposed with punitive intent. (Counsel for the State cited Jendell Australia Pty Ltd v Kesby39). It may be doubted whether this is a proper characterisation of the $80,000 fine imposed once and for all for a past contempt. Its size obviously betokens elements of particular and general deterrence?°. In any event the distinction between civil and criminal contempt has been largely removed by the High Court in Witham v Holloway4!, a case that effectively overrules Jendell. A further answer has already been given. The reference to "penalty, fine or forfeiture" in s694 encompasses civil as well as criminal sanctions.

One final matter needs to be referred to. The fine imposed by Pearlman J was ordered to be paid to the Registrar of the Court. Presumably it was so paid. Pt15 13(2) of the 1980 Rules requires the registrar of the Court to pay into the Consolidated Revenue Fund all moneys paid to him on account of any fine imposed by the Court. The corresponding provision in the 1996 Rules (Pt17 12(3)) provides, in subr(3), that subr(2) does not apply where an Act makes provision for payment of any fine to a statutory body or local Council (for example, under s694 of the Local Government Act 1993). There is no similar provision in the 1980 Rules which were in force when the fine was ordered in the present case. The consequences of this distinction were not explored in argument. In those circumstances I would not be prepared to assume that the Registrar of the Court has put it out of her power to comply with the order which I will be proposing. In any event, a rule such as Pt15 r3(2) could not override a statutory right such as s694, and (properly understood) does not purport to do so given what is entailed in a reference to the Consolidated Fund: cf Northern Suburbs General Cemetery Reserve Trust v The Commonwealth*2.

I would therefore uphold the appeal without addressing the alternative argument raised by the Council. Pearlman J declined to exercise her discretion in favour of the Council on various grounds. I would reserve my view as to the correctness of taking into account a view of s5(3) of the Fines and Penalties Act that it "is not designed to reward a party bringing proceedings in the discharge of its ordinary function": see the discussion above in relation to common informers, especially the reference to Boyce v O' Hehir43. Since however I would uphold the appeal in relation to s694 I shall refrain from saying more on this issue.

Order that the $80,000 fine paid by Mushroom Composters Pty Ltd to the Registrar of the Land and Environment Court be paid to the appellant pursuant

The weekly fine for continuing default may be in a different category, but it is not in issue in the present case.

URJ HAWKESBURY CITY COUNCIL v FOSTER and ANOR (Meagher JA) 9

Appellant's costs of the appeal to be paid by the State of New South Wales. It is not appropriate to order costs in relation to the proceedings below. At the critical stage it would appear that the Council had no contradictor.

Meagher JA This is an appeal from the decision of Pearlman CJ in the Land and Environment Court of New South Wales delivered 6 May 1996.

The facts giving rise to this appeal may be briefly stated. The second respondent, Mushroom Composters Pty Ltd, as their name suggests, was in the business of producing mushroom compost. The carrying on of that business had the consequence of producing or bad smell which upset members of the nearby community and the appellant, Hawkesbury City Council ("the Council').

Certain proceedings were brought which resulted in an injunction restraining the Mushroom Composters from using its premises or allowing its premises to be used so as to interfere with the animate of the neighbourhood in respect of smell.

At a later time, the Council brought proceedings against the Mushroom Composters for contempt of the Order referred to immediately above. The Mushroom Composters pleaded guilty to the charge of contempt and were fined $80,000 and a weekly rate of $8,000 per week imposed for continuing breaches.

The Council then brought proceedings by way of notice of motion, seeking an order directing that the whole of the fine for contempt paid by the Mushroom Composters be paid to the Council, or, alternatively, the Council be granted a moiety of the fine. The notice of motion was dismissed, by way of judgement dated 9 may 1996, having the judgment presently under appeal.

The Council argues that her Honour was in error in holding that, s694(1) of the Local Government Act 1993 which could be described as "fine... under any Act." To my mind there was no error. The fine could not be described as "under any Act." It was imposed by a Court for violation of that Court's orders; it was not imposed by some statute.

The next ground of appeal concerned her Honour's refusal to make an order under s5(3) of the Fines and Penalties Act, 1901, which provides

"Where the Act imposing or authorising the imposition of a fine penalty or forfeiture makes no direction as to the application thereof the court before which such fine penalty or forfeiture is recovered may where the informer or other person prosecuting or suing for the same is not a member of the police force direct that such portion of the fine penalty or forfeiture as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same."

"T am not, however, prepared to exercise my discretion in the council's favour by directing the payment of a moiety of the fine to it. The council has a statutory duty to enforce the planning law of this State, and the actions it took in these proceedings were in furtherance of that duty. That is far from the rationale of s5(3). As I noted in the February judgment, provisions such as s5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty. A provision such as s5(3) is not designed to reward a party bringing proceedings in the discharge of its ordinary functions. Furthermore, s5(3) is not designed to reimburse a party for its costs, and in this case the costs of the council in bringing the proceedings were the subject of a costs agreement between the parties."

I can detect no error in what her Honour says. Nothing is overlooked. Nothing is mis-stated. The result is, far from being unreasonable, perfectly plausible, even if it relies on no authority more substantial than the judgment of Cripps J in

Fairfield City Council v Tisone Pty Ltd (unreported, 18 May 1988). Mr Tobias QC learned senior council for the appellant endeavoured to argue that it was inaccurate to state that the Council had a duty to refer local government laws. In a sense this is right. There is not section of any Act which states: "Each Council has a duty to enforce all planning laws relating to it." But each Council is empowered to enforce all relevant planning law, is undoubtedly expected to do so by its ratepayers, and is therefore under at least a moral duty (and arguably under a legal duty) to do so. The appeal should be dismissed with costs.

Sheller JA I have had the benefit of reading in draft the judgments of the President and Meagher JA where the facts giving rise to this appeal are set out. I need not repeat them in full.

The Land and Environment Court is constituted a superior court of record by s5(1) of the Land and Environment Court Act 1979. S67 of the same Act provides that the Court shall have and may exercise the functions vested in the Supreme Court in respect of, inter alia, "(d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court;" compare s24 of the Judiciary Act 1903. In Almon's case (1765) Wilmot J is recorded as saying:

"The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court, acted in the face of it,...... and the issuing attachments by the supreme courts of justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the common law;"

Fox, The History of Contempt of Court (1972) at 7-8.

Contempt of court is a common law offence and, subject to the restrictions on excessive fines and cruel punishments in the Bill of Rights 1688, there is no maximum penalty: Gallagher v Durack (1983) 152 CLR 238 at 249; Smith v The Queen (1991) 25 NSWLR 1 at 13. Pt55 r13(2) of the Supreme Court Rules provides that where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. This rule is declaratory of the Court's power of punishment and does not exhaust it; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314. In Smith v The Queen, Kirby P, at 15, pointed out that rl3 is made in the most general terms. "This is why punishment for contempt is often said to be at large. It is not governed, in this country, by statute as it now is in England."

In the present case the Land and Environment Court punished the second respondent, Mushroom Composters Pty Ltd, for not obeying an order of the Court. The punishment was a fine of $80,000 with an additional weekly fine for continuing default. The appellant Council asked the Court to direct that the whole or part of the fine be paid to it in reliance upon either s694(1) of the Local Government Act 1993 or s5(3) of the Fines and Penalties Act 1901. Meagher JA has set out the terms of those subsections in his reasons for judgment.

S694 (1) makes any fine "under any Act recovered in proceedings instituted... by the council" payable to the council to be allocated to its consolidated fund. S5(3) of the Fines and Penalties Act 1901 applies "Where the

URJ HAWKESBURY CITY COUNCIL v FOSTER and ANOR (Sheller JA) 11

Act imposing or authorising the imposition of a fine...... makes no direction as to the application thereof" and enables the Court to direct that such portion of the fine as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same. The appellant's claim raises the question whether the fine was "under any Act" within the meaning of s694(1) and whether an Act imposed or authorised the imposition of the fine within the meaning of s5(3).

In my opinion, a fine which is not "specified" in any Act, to adopt the word used in s54 of the Interpretation Act 1987, is not a fine "under" an Act. No Act "specifies" a fine for contempt of Court. S67(d) of the Land and Environment Court Act says nothing about the punishment to be imposed for contempt which remains at large. This is so whether s67(d) should be read as declaratory of the Court's inherent power to punish for contempt, which is the consequence of giving the Land and Environment Court the status of a superior court of record (in my opinion, the better view: compare The King v Taylor; ex parte Roach (1951) 82 CLR 587 at 598 and see Logwon Pty Ltd v Warringah Shire Council (1993) 82 LGERA 158 at 171-172), or read as the source of power to punish for contempt.

Investing a Court with a status or a power which enables it to punish for contempt or any other offence does not impose, or authorise the imposition of a penalty for the offence. To determine what penalty may be imposed the Court has reference to the amount or scale to be found elsewhere, in most cases in a statute (for example ch16 of the Local Government Act 1993), in the case of contempt, in the common law. If a statute specifies the penalty or the range of penalty, then indeed the penalty can be said to be imposed by or authorised to be imposed by an Act.

While s67(d) might be said to sanction or countenance, and hence authorise, the Court to punish persons guilty of contempt, it does not specify and thereby authorise the fine. To determine what, if any, punishment it may impose the Court looks not to the statute but to the nature of the common law power, as old as the Courts in Westminster, to vindicate its authority. The Court's power to impose a fine by way of punishment for contempt derives from the consequences at common law of the commission of the offence.

Furthermore, Pearlman CJ was not prepared to exercise her discretion under s5(3) in the appellant's favour by directing the payment of a moiety of the fine to it. The exercise of that discretion is not shown to have proceeded on any wrong principle. This Court cannot interfere.

In my opinion, the fine imposed by the Land and Environment Court was not a fine payable to the Council under s694(1), nor one a portion of which the Court might direct to be paid in accordance with s5(3). For these reasons, the Chief Judge rightly dismissed the appellant's notice of motion and the appeal should be dismissed.

Solicitors for the first respondent: Environmental Defenders Office Counsel for the second respondent: J Needham

10 Solicitors for the second respondent: Corrs Chambers Westgarth

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