Hawkesbury City Council v Laird

Statement of agreed facts

1. A statement of agreed facts (SOAF) was agreed by the parties as follows (annexures omitted): Introduction 1. On 21 March 2022, Consent Orders were made by Duggan J of the Land and Environment Court in Hawkesbury City Council v Michael Anthony Laird and Ors. A copy of the Consent Orders are [sic] contained behind Tab A. 2. Pursuant to Notices of Motion and accompanying Statements of Charge filed on 22 July 2022, the First and Second Respondents (Respondents) were charged with contempt in that they failed to comply with Order number 9 of the Consent Orders. 3. The First and Second Respondents pleaded guilty to the charge on 16 December 2022. 4. Order 9 of the Consent Orders stated: [see above in [3]] 5. By Order 9, a report was required to be provided to the Applicant and the NSW EPA by 21 May 2022. 6. The Consent Orders related to the premises known as Lot 5 in DP 786523, being 14C Yengo Drive Putty NSW 2330 (the Premises). 7. The Premises are owned by the Second Respondent. Background 9. On 6 October 2019, the EPA arrived and conducted an onsite inspection where mounds of waste including demolition and office materials of approximately 200-500 tonnes were observed. Two samples were taken from waste mounds, which were analysed and found to contain asbestos. 10. On 1 April 2020, the EPA received a further complaint regarding the Premises. 11. On 15 April 2020, the EPA arrived and conducted an onsite inspection. Two samples were taken from two waste mounds, which appeared to be new, and which were found to contain asbestos. 14. On 10 July 2020 a joint site inspection of the Premises was undertaken by Council with officers from the EPA. During the inspection the following was observed: (a) Earthworks had been undertaken to create 2 large flat areas both containing waste material throughout. (b) 33 piles of material containing assorted building waste on one of the flat areas. (c) Piles of sandstone material. (e) Piles of removed trees and vegetation. (f) Further piles of waste material containing metals and what appeared to be mulched building material and timber. (g) Piled metal waste. 15. On 19 October 2020, a Prevention Notice was issued by the EPA to the First Respondent. The Prevention Notice included a requirement to immediately cease the importing, processing, reusing and/or land applying Waste including Asbestos Waste at the Premises. 16. On 21 October 2020 Council officers undertook a further inspection of the Premises. 17. Photographs from this inspection are contained behind Tab B. During the inspection on 21 October 2020 samples were collected by Council. One of those samples was found to contain asbestos. Behind Tab C is a record relating to the analysis of the sample. Service of Court Orders 19. On 24 March 2022 a Licenced Commercial Agent served the Second Respondent with sealed copies of the Consent Orders. The Consent Orders contained the penal notice given in accordance with Part 40, Division 2, Rule 40.7 of the Uniform Civil Procedure Rules 2005. 20. On 29 March 2022 the First Respondent was served by a Licenced Commercial Agent with sealed copies of the Consent Orders. The Consent Orders contained the penal notice given in accordance with Part 40, Division 2, Rule 40.7 of the Uniform Civil Procedure Rules 2005. Failure to comply with Order No. 9 21. On 30 May, 23 June and 9 November 2022 Damien Rose, a Senior Environment Protection Officer at the EPA and an authorised officer under the Protection of the Environment Operations Act 1997 (POEO Act), undertook searches of the EPA's records in relation to the provision of a Waste Classification Report (WCR) meeting the requirements of Order No. 9 of the Consent Orders. 22. These searches revealed that the EPA had not received a WCR meeting the requirements of Order No. 9 of the Consent Orders. 23. On 30 June and 1 November 2022, Cassandra Bugden, Coordinator Compliance at Hawkesbury City Council (Council) undertook searches of Council's records in relation to the provision of a WCR meeting the requirements of Order No. 9 of the Consent Orders. 24. These searches revealed that Council had not received a WCR meeting the requirements of Order No. 9 of the Consent order. 25. A preliminary Waste Classification Report was served on the Applicant on 27 February 2023. A copy of the report is contained behind Tab D. Correspondence prior to commencing contempt proceedings 26. On 30 May 2022 Pikes & Verekers Lawyers wrote to the Respondents in relation to their failure to comply with Order No. 9 of the Consent Orders and providing until 5pm on 6 June 2022 to comply. A copy of the letter was also furnished by email to Consulting & Environmental Services who had been engaged by the Respondents. 27. On 30 May 2022, Jane Aiken of Consulting & Environmental Services sent an email to the Council regarding the W[CR]. 28. Council sent a reply to Ms Aiken on 31 May 2022. 29. Annexures "C" and "D" to the Affidavit of Thomas Ward, dated 22 July 2022 are contained behind Tab E. 30. On 2 September 2022, the Council received a number of emails which had been sent by the First and Second Respondents to the Court regarding the provision of a WCR. 31. Between 23 September and 6 October 2022, Council corresponded with the First and Second Respondents in relation to the emails which had been sent. A number of requests were made by the Applicant to be provided with these documents which were not provided in a form that could be accessed. 32. Annexures "A", "B", "C" and "D" to the Affidavit of Thomas Ward are contained behind Tab F. Recovery of costs 33. On 6 June 2022 orders were made in the Local Court being the Registration/Judgement [sic] of the costs order made in the Class 4 proceedings. Antecedents of the First Respondent 35. On 29 July 2021 the First Respondent was convicted and fined $7,500.00 in Paramatta Local Court for failing to comply with an Investigative requirement under Part 7 of the POEO Act, being an offence pursuant to s 211 of the POEO Act. 36. On 12 May 2021 the First Respondent was convicted and fined in Windsor Local Court of the following offences: (a) Pollute Land - s 142A of the POEO Act: (i) Fined $16,000.00, ordered to pay property owners $100,000.00 in compensation for clean-up costs and pay investigation costs of $5,000.00. (b) Pollute Land - s 142A of the POEO Act: (i) Fined $12,000.00, ordered to pay property owner $73,793.30 in compensation for clean-up costs and pay investigation costs of $5,000.00 (c) The above offences related to the First Respondent causing asbestos waste to be deposited on properties located at 49 and 51 Cleary Drive, Pitt Town. Antecedents of the Second Respondent 37. On 20 December 2022 the Second Respondent was convicted and fined for five (5) breaches of s 91(5) of the POEO Act in relation to failures to comply with a Clean-up Notice issued by the EPA in relation to the Premises: (a) Fined $2,000.00; (b) Fined $15,000.00; (c) Fined $2,000.00; (d) Fined $2,000.00; and (e) Fined $2,000.00. Record of Penalty Notices issued to the First Respondent 38. The following tables contain records of Penalty Notices issued by the Applicant and/or the EPA to the First Respondent: EPA Number Location Type Issued date 3173525823 49 Cleary Drive, PITT TOWN, NSW 2756 Penalty Notice - failure to pay fee within time provided under section - individual 15-Jun-18 3173526721 3548 Putty Road, COLO HEIGHTS, NSW 2756 Penalty Notice - failure to pay fee within time provided under section - individual 30-Nov-18 3173527583 Penalty Notice - not comply with requirement under Chapter 7 - individual 1-Apr-19 3173528261 3548 Putty Road, COLO HEIGHTS, NSW 2756 Penalty Notice - failure to comply with clean-up notice - other officer - individual 17-Sep-19 3173530856 14C Yengo Drive, PUTTY, NSW 2330 Penalty Notice - permit etc asbestos waste to be re-used etc - other officer - individual 23-Dec-21 3173530865 14C Yengo Drive, PUTTY, NSW 2330 Penalty Notice - unlawfully use etc place as waste facility - other officer - individual 23-Dec-21 3173531159 675 SACKVILLE ROAD, EBENEZER, NEW SOUTH WALES 2756 Penalty Notice -fail to pay fee within time provided under section - individual 27-Jun-22

Hawkesbury City Council Number Location Type Issued date 3216505784 278 Cornwallis Road, Cornwallis Penalty Notice - Development without development consent - any other case - individual 09/10/2020 3177498583 738 Sackville Road, Ebenezer Penalty Notice - Development without development consent - any other case - individual 15/08/2019

39. The Applicant's records indicate that the Penalty Notices issued by it have not been paid and remain outstanding. Record of Penalty Notice issued to the Second Respondent 40. The following table contains record(s) of Penalty Notices issued by the EPA to the Second Respondent: EPA Number Location Type Issued date 3173530140 14C Yengo Drive, Putty NSW 2330 Penalty Notice - failure to pay fee within time provided under section - individual 08-April-21

Properties owned by the Second Respondent 41. Land title records indicate the Second Respondent owns the following property: The Premises, which were purchased in July 2019 for $120,000.00. There is no mortgage on title.

Annexures to the statement of agreed facts

1. The following documents were annexed to the SOAF: 1. The 2022 Consent Orders; 2. Photographs from an inspection of the Premises by the Council on 21 October 2020. The photographs depict stockpiles of waste and flat areas on the Premises; 3. The sample analysis results of samples collected by council officers during the inspection on 21 October 2020; 4. The waste classification preliminary quantification report (preliminary WCR) dated 29 September 2022 prepared by Dr Aiken soil scientist of Consulting and Environment Services on behalf of the Respondents; 5. Email correspondence between Dr Aiken, the Council's legal representative and the Respondents dated 6, 8, 13 April, 30 and 31 May 2022 regarding the provision of the WCR; and 6. Email correspondence from the Court to the Council's legal representative dated 2 September 2022, forwarding correspondence received from Mr Laird containing emails and other documents from Dr Aiken to the Respondents.

Correspondence regarding the completion of Order 9

1. I was referred to the following correspondence by the parties: 1. An email dated 30 May 2022 from Mr Ward solicitor for the Council to the Respondents stating the WCR had not been received by the Council. An accompanying letter dated 30 May 2022 stated if the WCR required by Order 9 was not provided to the Council and the Environment Protection Authority (EPA) by 5pm on 6 June 2022, contempt proceedings may be commenced against the Respondents without further notice. The Respondents were referred to the penal notice served with the 2022 Consent Orders for potential penalties that apply if court orders are not complied with and were informed that costs would be sought on an indemnity basis if proceedings commenced. 2. An email from Dr Aiken to Mr Ward dated 30 May 2022 advising that a document could be provided to the Council with a full description of all information collected up to 30 May 2022 if the document remained the property of Consulting and Environmental Services because a bill remained unpaid. At this time the surface areas had been quantified and all the fill locations and volumes and waste had been described. 3. Emails from Mr Ward to Mr Laird dated 23 September 2022 and 5 October 2022 stating he could not access the material he had been sent without a password. He requested the material be sent via another means. 4. An email from Ms Harte to Mr Ward dated 6 October 2022 stating Dr Aiken had been requested to supply the documents in a different format and suggesting an account may need to be created to view the document as sent. 5. An email from Ms Keogh solicitor for the Council to the Respondents dated 19 October 2022 stating the Council had not been able to access the document.

Council's evidence

1. An affidavit of Mr Ward dated 7 March 2022 was read. On 28 February 2023 Mr Ward sought information from the EPA about whether penalty notices issued to the Respondents by the EPA had been paid. On 3 March 2023 the EPA sent a status update on penalty notices issued to Mr Laird. Of the eight penalty notices issued to Mr Laird, three were subject to a payment plan, two were paid, two were enforced and one was 'closed-CAN issued'.
2. The Council tendered the 2021-2022 tax return of Controlled Earthworks Pty Ltd. Mr Laird is the director and an employee of Controlled Earthworks Pty Ltd. The total income of the company was $665,854 before reconciliation. After expenses were deducted, the company showed a loss of $43,728. Expenses amounted to $709,582 with depreciation expenses of $183,570, motor vehicle expenses of $122,911, repairs and maintenance expenses of $67,412 and a category of 'all other expenses' of $187,730 inter alia. The net income of the company was $65,850 and tax payable was $16,462.50.

Respondents' evidence

1. The Respondents read affidavits of Mr Laird dated 6 March 2023 and 15 April 2024 and Ms Harte dated 6 and 9 March 2023.

Mr Laird's tax returns

1. Mr Laird's tax returns for three financial years 2019-2020 to 2021-2022 were tendered identifying his income as an excavator operator for Controlled Excavation Pty Ltd including a deduction for work-related car expenses.

Ms Harte's tax returns

1. Ms Harte's tax returns for three financial years 2019-2020 to 2021-2022 were tendered identifying her income from Controlled Excavation Pty Ltd.

Affidavit of Mr Laird dated 6 March 2023

1. Mr Laird affirmed an affidavit dated 6 March 2023. On or about 5 July 2019 his partner of 15 years Ms Harte purchased the Premises from the NSW Trustee and Guardian. He believed that the EPA had previously directed the NSW Trustee and Guardian to undertake clean-up action in relation to the Premises and that clean-up action had not occurred prior to the sale.
2. Mr Laird was present for site inspections conducted by the EPA on 6 October 2019, 15, 21 and 28 April 2020, 10 July 2020 and 21 October 2020. On 12 November 2020 the EPA issued a clean-up notice to Ms Harte.
3. On or about 11 January 2021, the Respondents engaged Consulting and Environmental Services to manage and prepare a WCR.
4. The EPA requested the Respondents show cause as to why the EPA should not proceed with a prosecution in relation to the clean-up notice. Consulting and Environment Services were instructed to respond to the EPA on the Respondents' behalf.
5. The Respondents received correspondence from Consulting and Environment Services on 27 January 2021 that advised inter alia an application for formal access to information under the Government Information (Public Access) Act 2009 (NSW) had been lodged to the Council. Mr Laird believed the Council responded to that application on or about 23 April 2021.
6. The Respondents were unable to progress compliance with the clean-up notice in 2021 due to financial hardship. In September 2021 Controlled Excavation Pty Ltd was placed into liquidation. Ms Harte was the Director of Controlled Excavation Pty Ltd and Mr Laird an employee. Controlled Excavation Pty Ltd was the only source of income for the Respondents. [I note Mr Laird later registered a business named Controlled Earthworks Pty Ltd of which he is currently director and an employee]. Between September 2021 and September 2022 the Respondents were unrepresented.
7. On 1 September 2022, Mr Laird forwarded emails received from Consulting and Environment Services to the Court regarding compliance with the 2022 Consent Orders. In those emails Consulting and Environment Services advised that a WCR could be prepared within 14 days if the funds were available.
8. On or about 29 September 2022, Consulting and Environment Services furnished a preliminary WCR in relation to the Premises. On 5 October 2022, Mr Ward sent an email to Mr Laird that he could not access materials previously provided to the Court. Mr Laird then requested Dr Aiken send him the material in a different format so he could forward them to Mr Ward. On 20 October 2022 Mr Laird received an email from Dr Aiken about the request. As at that date, Mr Laird mistakenly believed that the preliminary WCR had been provided to Mr Ward.
9. Mr Laird was sorry that he did not do more to comply with the 2022 Consent Orders.
10. The Respondents are facing ongoing financial difficulties and debts. The Respondents were ready to comply with any further order made by the Court to take remedial action in relation to the Premises. The remedial action will take much more time than originally anticipated.
11. Mr Laird has only one personal bank account. He does not own any properties. He is in the process of purchasing a property at Sackville for $500,000. The settlement was scheduled for six months' time. He had paid a $50,000 deposit that was loaned to him from Controlled Earthworks Pty Ltd for the purchase. He did not have any other loan in relation to the Sackville property. Mr Laird has a number of debts including approximately $67,000 in fines. He was trying to organise payment plans for all financial penalties he had been issued.
12. Mr Laird and Ms Harte have a shared debt to Consulting and Environment Services of $45,628.51.
13. Mr Laird provided details about Ms Harte's personal financial circumstances concerning her single bank account, with substantial fines owing for EPA's legal costs, Centrelink overpayment, Revenue NSW penalty notice and debt collection of unknown origin.

Respondents' bank account statements

1. Two bank statements for Mr Laird's personal bank account covering the period 16 September 2022 to 17 January 2023 were annexed to his affidavit. On 26 September 2023 a payment of $5,600 was made in his name. On 3 January 2023 he made a payment to a business named Gold Coast Helitours Main Beach. A bank statement for the personal account of Ms Harte was also annexed to the affidavit of Mr Laird.

Oral evidence of Mr Laird

1. During cross-examination, Mr Laird stated that his only asset was an excavation company Controlled Earthworks Pty Ltd. The company has two employees, himself and Ms Harte. The company engages a number of subcontractors. He confirmed he has a personal bank account.
2. Mr Laird does not drive a car. Asked why his tax return for the 2019-2020 financial year claimed a vehicle deduction (see above in [Error! Reference source not found.]) he stated that in 2020 he did drive a car. Asked whether he drove a Range Rover, he stated he did not and that the Range Rover was a company car for Controlled Earthworks Pty Ltd. He did not drive that car as he has not had a licence since late 2020. Ms Harte chose the Ranger Rover, a 2017 model. The company purchased the car in May or June 2022. He estimated the car cost to be $130,000.
3. Mr Laird agreed the directions in the clean-up notice issued by the EPA in November 2020 above in [15] have the same requirement as the 2022 Consent Orders. He agreed that he knew in November 2020 a WCR was required and that he was also ordered to provide such a report by the 2022 Consent Orders. In November 2020 he did not have any idea of the cost of the WCR. Mr Laird engaged someone in early January 2021. He thought he was quoted about $25,000 to $30,000 to comply with the clean-up notice. When he agreed to the 2022 Consent Orders he thought the approximate cost of preparing the WCR was in the same amount as the directions being $25,000 to $30,000. He believed it was feasible based on this level of cost to comply with the timetable to meet the 2022 Consent Orders.
4. Ms Harte's role in the company was administration such as issuing bills, organising all the work dockets and picking up parts. The work is carried out at the Respondents' residential address.
5. Asked why the company spent $130,000 on a car when the Respondents had a WCR they hadn't paid for and needed to provide in order to comply with the 2022 Consent Orders, he answered the car was under finance and stated the WCR had not been completed so the invoice was not due. Asked whether he could have bought a cheaper car and saved money to pay for the WCR, he replied he did not spend a lot of money to purchase the car. He agreed the finance for the car was a loan with interest that had to be paid off. Mr Laird agreed that the Range Rover was not an asset as it was leased. The lease payments are $2,000 each month, under a five year loan. He agreed over five years the lease amount would be about $120,000. In response to the proposition that Mr Laird could have bought a cheaper car so that more money could be spent on the WCR, he asked 'How would I have had more money at the time to pay for the report?'. Asked whether the monthly car expense made it harder to pay for the WCR, Mr Laird answered yes and also that the costs of the WCR have blown out as well. The costs of the report are now $55,000 in addition to all the legal costs. He has paid Dr Aiken about $15,000.
6. Mr Laird agreed a preliminary WCR was provided. Further quantification of the materials on site was needed. He had not paid all the outstanding amounts for the preliminary WCR. These unpaid amounts are not what had prevented Dr Aiken from preparing the final version of the WCR. He accepted unpaid fees were one of the reasons that prevented completion of the final version of the WCR. The main reason is funding and that Mr Laird had been unable to get anyone to quantify the amount of rubbish on the Premises. Mr Laird agreed that the orders required the consultant he engaged to quantify and classify the waste. The original quote was $30,000. It would now cost at least $40,000 to quantify the amount of waste. He became aware of the price increase when he received the preliminary WCR on 29 September 2022.
7. Asked how much equipment owned by Controlled Earthworks Pty Ltd that was worth $60,000 to $70,000 was purchased for, he answered $40,000. He did work to the equipment to 'get it up to scratch'. He paid for the equipment in instalments. Referred to the tax return of Controlled Earthworks Pty Ltd above in [10], he did not know why the depreciation expenses amounted to $183,000 when the equipment was purchased for $40,000 and was now worth $60,000 to $70,000. Asked if he accepted that the depreciation expense of $183,000 was wrong, he answered he did not know.
8. The motor vehicles expenses were for the Range Rover and all the different vehicles that the company hired. Asked what was included in the other expenses amount of $187,730 he answered it could be subcontractors or parts. Asked why the company had incurred expenses which are not tax deductible (amounting to $293,000), he responded he was not sure.
9. Mr Laird agreed that the company tax return suggested he made a loss. When put to him that the tax return is not correct because inter alia the depreciation expenses did not match the evidence provided in the Court, he stated he did not know anything about depreciation. He did not knowingly make a false statement in relation to the tax return. He disagreed with the proposition that he was not being honest with the Court when he stated he was unsure if the $183,000 figure for depreciation was correct.
10. Mr Laird agreed that he knew the 2022 Consent Orders required that he provide the WCR to the Council and the EPA. He disagreed with the proposition that his statement 'As at 20 October 2022, I mistakenly believed that the preliminary WCR had been provided to the Council's solicitor, Mr Ward' was knowingly false.
11. Mr Laird stated he sent the preliminary WCR to Mr Ward. Only later when Mr Ward emailed him did he became aware that Mr Ward could not open the document. He emailed Dr Aiken and asked her to send the document in a different format. Asked if he can remember when he first saw the email from Mr Ward, he replied it would have been when they went through all the emails with their solicitor. Asked whether Ms Harte would have received the email that had also been addressed to her, he answered 'I don't have access to her email but she would have'. Asked whether they discussed the email, he stated that all the correspondence with Mr Ward was forwarded to Dr Aiken who was supposed to send the correct correspondence to Mr Ward.
12. Mr Laird recalled seeing the email sent by Mr Ward on 5 October 2022 (summarised above in [21]) and contacted Dr Aiken straightaway asking her to forward the preliminary WCR to Mr Ward in a different format. Asked how he saw this email, he responded he was unsure suggesting Ms Harte may have shown him. Asked whether he sent an email to Dr Aiken, he stated he would have called her about this email. He had not seen the email sent by Ms Harte to Mr Ward on 6 October 2022 summarised above in [8(4)]. Mr Laird recalled seeing the email sent by the Council's solicitors on 19 October 2022 requesting outstanding documents (summarised above in [8(5)]) and spoke to Dr Aiken. On 20 October 2022 a response from Dr Aiken stated that it was untrue the documents could not be accessed.
13. Mr Laird normally called Dr Aiken and they would have corresponded a hundred or more times regarding this matter. After he received the email on 20 October 2022 he did not hear anything back until December 2022.
14. Asked on what basis he believed the preliminary WCR had been provided to Mr Ward, he stated Dr Aiken mentioned it was untrue or incorrect that the documents could not be opened. He stated that on the basis the Respondents could open the document he thought Mr Ward would be able to open the document. He stated that Dr Aiken had assured them the files could be accessed when asked about the three emails sent to the Respondents that indicated the Council could not open the documents.
15. Mr Laird was not aware the report was a preliminary WCR until he saw it on 29 September 2022. He thought the preliminary WCR would comply with the 2022 Consent Orders. Asked what steps he has taken to finalise the WCR, he answered 'We've spoken about works that need to be done to have it finalised, but we haven't the funds available to get those works done.' He spoke to Dr Aiken and a few other people. Asked how much funding was required to finalise the WCR, he answered they had been more focused on paying solicitors than paying for the WCRs. He stated to do all the works associated with the WCR is going to cost at least another $40,000. He became aware of the additional costs in October 2022.
16. He agreed the 2022 Consent Orders required him to carry out the clean-up work within 300 days after receiving the WCR. Asked how much the cost of the clean-up work would be, he answered about $3 million. This figure was sourced from Dr Aiken.
17. The purchase of the Sackville property as an investment (see above in [24]) occurred in the 2022-2023 financial year. The $50,000 deposit to purchase the Sackville property was paid and a contract of sale for the purchase of the property was signed in February 2023. He expected the remaining $450,000 to purchase the Sackville property would come from a lender. Asked whether the $50,000 obtained from Controlled Earthworks Pty Ltd could have been spent to finalise the WCR, he answered that money was company money. The $50,000 will be lent back to the company when the mortgage goes through. Asked whether he could have borrowed that money from the company to finalise the WCR from Dr Aiken, he answered 'I suppose I could have, but it's not something that's going to take five minutes. There's quite a lot of work that needs to be done to get that report done.' The reason he purchased the Sackville property was so that he could then have funds available to assist with the clean-up later. He disagreed with the Council's proposition that the reason he did not comply with Order 9 was because he knew the timetable for complying with the clean-up wouldn't commence.
18. Referred to his bank statement summarised above in [27], he explained that payments into the account on 26 September 2022 appear to be from a business account in his name. The internet login for the business account is linked to the personal login of Mr Laird. He confirmed he held no other personal account.
19. Asked whether he had taken any steps to reduce his personal expenses to have more money to provide to Dr Aiken, Mr Laird answered yes. He agreed he took a holiday to the Gold Coast in December 2022 and January 2022 and was asked to confirm various payments that were made. Asked how he paid for the accommodation, he answered probably by cash. He could not remember how much the accommodation cost. He agreed a payment on the bank statement from 17 November 2022 to 17 January 2023 was for a helicopter tour he took on the Gold Coast.
20. Mr Laird disagreed that the expenses claimed in the company tax return do not represent actual expenses incurred by the company and that the company's income suggested that he could quite easily pay Dr Aiken to finish the WCR.
21. In re-examination, Mr Laird stated he still owed Dr Aiken for the work she had done to date of approximately $40,000 to $45,000. He confirmed that a sum of $40,000 was required for quantification of the waste. Asked what other costs are involved in progressing this matter, he answered once all waste is located a further WCR is required that would cost another $25,000 to $30,000. Mr Laird had not expected to receive a preliminary WCR. He was expecting to receive a completed WCR. He agreed the preliminary WCR stated that further quantification is required. This information was a surprise to him because he was led to believe when they engaged Dr Aiken they would receive a finalised WCR.
22. Asked what he initially understood the waste problem affecting the Premises to be, he responded that they knew there was asbestos waste on the Premises but did not realise how much. Asked what he meant when he stated in cross-examination that he was trying to find someone else to do the quantification, he stated that the works that needed to be done to quantify the rubbish needed to be done by someone with an excavator or something else. He agreed he was shopping around for a better price.
23. General expenses include rent, food, phone, his children's schooling and sports. Asked how much savings he had at the end of each week in 2022 he answered not a lot, meaning they lived week to week. Mr Laird's accountant of four years prepared his tax returns. His bookkeeper provided information to the accountant. His bookkeeper lodged all his receipts and invoices for tax. He had weekly discussions with his bookkeeper.
24. Mr Laird expected that Dr Aiken would do a lot of the liaising with the Council and the EPA. Based on his belief that Dr Aiken was communicating with the Council he answered he thought the Council could open the WCR once he saw the email from Dr Aiken on 20 October 2022 saying it was untrue the files couldn't be opened. Mr Laird was asked whether he was presently able to do anything on the Premises. He answered no because they have problems with funds and had been focussed on the contempt proceeding.

Affidavit of Mr Laird dated 15 April 2024

1. Mr Laird affirmed an affidavit dated 15 April 2024 seeking to explain his failure to date to provide a compliant WCR in accordance with Order 9. Mr Laird contacted Dr Aiken advising her of the court mention dates in March and August 2023. An email dated 26 July 2023 from Dr Aiken confirmed her engagement to provide 'waste classification' and that 'documentation' should be completed for 7 August 2023. Mr Laird contacted Dr Aiken numerous times between 10 March 2023 and 17 August 2023 to ensure that a compliant WCR was provided. He was assured that Dr Aiken was suitably qualified and aware of the court orders. On 17 August 2023 Mr Laird received an email from Dr Aiken attaching a document titled 'Waste Classification Report - Full and Final Submission on 17th August 2023' which Mr Laird believed to be the compliant WCR. Mr Laird provided Dr Aiken's report to the Council and EPA on 17 August 2023. In an email dated 30 August 2023 Mr Laird was advised by the Council that the report was not compliant with Order 9. In an email dated 31 August 2023 Dr Aiken advised she could not further amend the report.
2. On or about 9 October 2023 Mr Laird contacted Mr Kaliappan of K2 Consulting Group and was advised he could produce a compliant WCR. Mr Laird was later informed that K2 Consulting Group could not produce a compliant WCR and that he should select a site auditor from a list of EPA site auditors. Mr Laird annexed an email from K2 Consulting Group dated 27 October 2023 with a link to a list of site auditors.
3. On 8 November 2023 Mr Laird contacted Mr Nelson from Douglas Partners who was on the list of site auditors. In an email dated 15 November 2023 Douglas Partners confirmed that a proposal was underway and requested a copy of any court order regarding the stockpile. On 13 December 2023 Douglas Partners advised they were unable to provide a proposal due to time constraints and it being a busy time of year. Mr Laird contacted Mr Nelson on 9 January 2024 and was again advised that Douglas Partners would not be in a position to provide a proposal.
4. On or about 13 January 2024 Mr Laird was taken into custody for unrelated offences and was remanded until 29 January 2024. Mr Laird is still in the process of searching for a site auditor to produce a compliant WCR and at the time of swearing the affidavit had every intention of complying with the orders.

Affidavits of Ms Harte

1. Ms Harte affirmed an affidavit dated 6 March 2023 in which she adopted the contents of Mr Laird's affidavit dated 6 March 2023 summarised above in [14]‑[26]. She attested that she purchased the Premises from the NSW Trustee and Guardian on 5 July 2019. On 12 November 2020 she was issued a clean-up notice by the EPA. She confirmed her personal financial circumstances were as set out above in [26]. Ms Harte swore another affidavit dated 9 March 2023. On 14 December 2022 she received five electronic files from Dr Aiken. She believed the files were in relation to the preliminary WCR dated 29 September 2022. Some of these files were attached to the emails that were forwarded to the Council on 1 September 2022 which the Council stated could not be opened.

Oral evidence of Ms Harte

1. In examination-in-chief Ms Harte clarified she does not adopt pars 9-10 and 29 as summarised above in [18] and [24] of Mr Laird's affidavit dated 6 March 2023 as she did not know the details contained in them.
2. In cross-examination Ms Harte confirmed that the Premises and a bank account were her only assets. She agreed the Premises was purchased in 2019, and that no finance was required to purchase the property. The Premises was purchased using Mr Laird's funds. She did not know where Mr Laird obtained the funds. The Respondents have two children who reside with them. The rent for the property they reside in is paid from the business account.
3. Ms Harte undertakes some of the company administration. She sorted out invoices, drove Mr Laird and picked up parts. She also did filing for the company. She did not make payments or access the bank accounts for the company. The company has one bank account. She knew the bank account details but Mr Laird made all the payments from the business account.
4. Ms Harte agreed that she went on holiday to Queensland in December 2022 and January 2023. Mr Laird paid for the accommodation and she did not know the amount.
5. Ms Harte agreed that she was knew she was obliged to provide a WCR to the Council and the EPA under the 2022 Consent Orders. She read the preliminary WCR but did not understand its contents. She knew the purpose of the WCR was to comply with Order 9. Ms Harte did not know until the email from Dr Aiken providing a preliminary report that this was what was being provided. She only saw that email in October 2022. She was aware in October 2022 that a preliminary WCR had been provided. Asked whether she knew the preliminary WCR needed to be finalised for Order 9, she answered she knew there needed to be a WCR and only through discussions with Mr Laird did she realise it wasn't the final WCR. These discussions occurred sometime between 29 September and 14 December 2022 after Mr Laird or Ms Harte received the email. She knew Mr Laird received the email in September 2022 as he tried to send it to the Council or the Court in September. Mr Laird used his email to access the preliminary WCR.
6. Ms Harte understood that Mr Laird was dealing with the WCR and was in contact with Dr Aiken. Ms Harte forwarded emails from Dr Aiken to the Respondents' solicitor. Asked whether she had a conversation with Mr Laird about what he was doing to ensure the WCR would be able to be finalised, she answered that she could not recall having another conversation with him. She knew he was sorting it out and she had forwarded everything she had to the solicitor.
7. In re-examination, Ms Harte left Mr Laird to be responsible for progressing the WCR, as he had a better understanding of the WCR than she did. Asked what Mr Laird did, she answered excavation. Ms Harte was recalled later in the hearing and gave further oral evidence to the effect that she was also sorry for the failure to comply with the 2022 Consent Orders.

Events since the substantive hearing

1. The hearing ran for two days on 9-10 March 2023. On 10 March 2023 the hearing was adjourned to 17 August 2023 to provide the Respondents an opportunity to purge their contempt. On 17 August 2023 at the mention a WCR was provided to the Council. The hearing was adjourned to 1 September 2023 to enable the Council to review whether the WCR complied with Order 9. On 1 September 2023 the Council advised the Court that the WCR provided did not comply with Order 9 in the view of the Council. The Respondents sought the opportunity to engage a different expert to prepare a WCR. The hearing was adjourned to 20 October 2023. The Respondents stated they intended to serve the Council and the EPA with a compliant WCR by 12 January 2024. On 20 October 2023 the matter was stood over to 5 February 2024. The Council intended to review the WCR and advise the Respondents of any non-compliance by 31 January 2024. The matter was mentioned on 13 December 2023 for the Respondents to update the Court on progress in the preparation of the WCR. The Court ordered that any affidavit sought to be relied on by the Respondents be filed and served two days prior to the next listing date in February 2024.
2. At the mention on 6 February 2024 the Court was advised that no WCR had been provided to the Council. The Court granted leave to the Council to reopen its case and tender a Local Court Order Notice of Conviction of Mr Laird of one offence of causing the re-use of asbestos waste and one offence of causing the Premises to be used as a waste facility without lawful authority, to which offences Mr Laird pleaded guilty. Leave was granted for the Respondents to file and serve a further affidavit by 13 April 2024.
3. At the mention on 2 April 2024 Mr Chidiac, who had previously acted for both Respondents, advised he no longer acted for Ms Harte after receiving instructions from her to this effect. Ms Harte was not present at the mention. Mr Chidiac had advised Ms Harte of the mention date via email and text. During a short adjournment the Council was able to contact Ms Harte who indicated that she would like to obtain legal advice and did not oppose the matter being adjourned to 23 April 2024. The Court granted leave to Mr Chidiac to file and serve a notice of ceasing to act for Ms Harte and granted Mr Laird further time to file and serve an affidavit. The matter was adjourned to 23 April 2024 to give Ms Harte the opportunity to address the Court about any matters that may have arisen since the substantive hearing.
4. At the mention on 23 April 2024 Ms Harte was not present. The Council filed in Court an affidavit of personal service dated 18 April 2024 stating that Ms Harte was informed of the mention. Mr Chidiac read an affidavit of Mr Laird dated 15 April 2024, summarised above in [52]-[55]. [I note an amended version of this affidavit was filed on 15 May 2024 attaching a missing annexure].
5. At the mention on 23 April 2024 the Court ordered that any application by Ms Harte to rely on further evidence since the substantive hearing was to be communicated to the Court by 23 May 2024 and that the Council notify Ms Harte of these orders by personal service. The Court has received no further communication from Ms Harte.

Sentencing for contempt

1. In Georges River Council v Mifsud [2017] NSWLEC 113 (Mifsud) at [23] 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 or herself of what he or she 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.

Seriousness of contempt

1. The Respondents have pleaded guilty to contempt. It is necessary to consider the seriousness of their contempt separately to the extent possible on the evidence before the Court. In considering the seriousness of contempt, it can be considered as technical, wilful or contumacious. Contempt can be civil or if serious such as being contumacious it may be criminal. The contempt of both Respondents is civil in nature as the Council is not alleging that the contempt is contumacious and there is otherwise no basis to make such a finding. Contempt can be technical where the contempt is 'casual, accidental or unintentional' and such contempt is civil in nature. Wilful contempt occurs when there is deliberate disobedience but without the intention of defying the Court's authority, see Jones v Stephenson [2020] NSWLEC 154 at [43].

Council's submissions

1. The Council submitted that the Respondents' failure to comply with Order 9 is clearly wilful and serious, relying on Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 (Perdikaris) at [41]-[42]. Both Respondents accept the WCR which was provided to them on or about 29 September 2022 was preliminary in nature and did not comply with Order 9. The evidence suggests Mr Laird had access to significant amounts of money which would have been more than sufficient to pay for the cost of obtaining a final report from his consultant. In cross examination he failed to point to any steps he took to meet that cost (other than a lack of funds), instead spending money on helicopter flights, holidays, and buying property. If a fine were imposed, it is unlikely that it would act as any encouragement for Mr Laird to comply with the 2022 Consent Orders. The pre-tax income of the company declared in the 2021-2022 financial year tax return, and the lack of any basis (on his own evidence) for an approximately $183,000 depreciation claim, suggest an actual income for the company that far exceeds its declared income. His claim that he purchased a $500,000 property in Sackville to be financed entirely by loan in order to provide funds for the clean-up of the Premises is fanciful. The fact that he continued to incur debts whilst existing debts remained unpaid or were the subject of payment plans suggests there is little prospect that a fine alone will coerce him to comply with the 2022 Consent Orders. The Council submitted that by failing to comply with Order 9, the requirement in Order 10 to remove waste from the site has not been engaged. The waste the subject of the 2022 Consent Orders is a large quantity of waste which contains contaminated material such as asbestos. There is the potential for significant ongoing harm if all the orders are not complied with.
2. Mr Laird's affidavit dated 15 April 2024 did not provide an adequate explanation for why the consultants were not able to prepare a compliant WCR. Mr Laird should have done more given he had over a year to ensure the provision of a compliant WCR apart from a short period of time in prison. Mr Laird's position is significantly more serious than Ms Harte as Mr Laird had the funds to obtain a compliant WCR. Ms Harte was less culpable than Mr Laird as she had left responsibility to comply with the orders to Mr Laird. Ms Harte's breach was more than a technical breach as it was not enough for Ms Harte to simply hand over responsibility to Mr Laird.

Respondents' submissions at the substantive hearing in March 2023 (joint)

1. Order 9 is uncertain in its terms. It is well established that for a civil contempt to be established, a court order must '… in unambiguous terms direct what is to be done', Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 at 95 (Luxmoore J), Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 at 515-6 (Owen J, Windeyer J agreeing at 506). Order 9 required the Respondents to engage a suitably qualified consultant to prepare a report within a specified time frame and they did so.
2. The Respondents' contempt is not serious. The Respondents did engage a consultant to assist them in complying with the 2022 Consent Orders and complied with Orders 7 and 8. They also engaged a consultant to prepare a WCR in accordance with Order 9, with evidence of work having been done to progress the WCR before the Court.
3. In reply to the Council's submission above in [71], the Respondents submit that the Council is impermissibly conflating the 2022 Consent Orders. The Council has been aware of the risks emanating from the Premises well before the Respondents became involved in 2019. However, there is no evidence that the Council took any steps to ameliorate the risk.

Finding on seriousness

1. The Respondents face court for contempt for their failure to provide a WCR which complies with Order 9 within the specified time frame. The 2022 Consent Orders were made on 21 March 2022. Order 9 specified 60 days for the preparation of a WCR prepared in accordance with the order, being required by 21 May 2022. The Respondents were aware of the consequences if they failed to comply with the 2022 Consent Orders. The parties agree the Respondents were served with a copy of the 2022 Consent orders containing the penal notice advising of the consequences. The penal notice advised that failing to do the acts required by the 2022 Consent Orders would render them liable to a fine, imprisonment or sequestration of property. Both were sent letters from the Council's solicitor on 30 May 2022 in relation to their failure to comply with Order 9.
2. The Respondents' counsel raised but did not strongly press an argument that it is uncertain how the Respondents could comply with Order 9 as drafted, whereby an expert consultant was engaged to provide the WCR, was responsible for carrying out any investigations necessary to complete the WCR and set the timeframe for the completion of the WCR. While that submission is arguable the Respondents have conducted themselves on the basis that they understood they had to have an appropriate consultant provide a compliant WCR within 60 days. The Respondents have pleaded guilty to contempt for non-compliance with the 2022 Consent Orders suggesting they understood their effect to be as the Council asserts. As the history of the matter shows, as a practical matter the Respondents were in the hands of their consultant to get the necessary WCR done in time to a certain extent and that did not occur, a circumstance I consider further below.
3. According to Mr Laird's affidavit evidence Dr Aiken was engaged by him on or about 11 January 2021 in relation to the clean-up notice dated 12 November 2020 issued by the EPA in relation to the Premises. The Respondents understood that Dr Aiken was communicating with the EPA on their behalf in relation to the clean-up notice. Due to financial hardship the clean-up notice was not complied with.
4. As identified in the SOAF at pars 27, 28, 30 referring to emails from Dr Aiken to the Council sent during May 2022 and from Mr Laird to the Court sent during September 2022, and the affidavit evidence of Mr Laird, extensive attempts were made by the Respondents before the commencement of the contempt proceedings on 22 July 2022 to obtain a compliant WCR from Dr Aiken. According to emails sent in April 2022, Dr Aiken advised the Council of the efforts made to comply with Order 8 of the 2022 Consent Orders. Dr Aiken wrote to the Council on 30 May 2022 to the effect that she had started preparing a WCR and advising that the landowner was in financial hardship. The Council replied on 31 May 2022.
5. A preliminary WCR dated 29 September 2022 was prepared by Dr Aiken and sent to the Respondents and the Council. The Respondents' undisputed evidence is that they were not aware that the WCR would not be in final form until they received it and saw that it was described as preliminary. Dr Aiken's quote to do a report complying with the clean-up notice and the 2022 Consent Orders of $25,000-30,000 was understood by Mr Laird to be for the supply of a final WCR. The Respondents' unchallenged evidence is that they had expected a final WCR to be provided for the amount they expected to pay in the quote they accepted. At the further hearing in late 2023 Mr Laird stated in oral evidence that the cost of the WCR was now $55,000 in addition to legal costs. He identified that the reasons why a completed WCR had not been provided was due to a lack of funds and not being able to find a consultant to quantify the waste as required by Order 9.
6. The SOAF par 25 refers to the service of the preliminary WCR on 27 February 2023 on the Council. It is unclear why that date is in the SOAF. Between 23 September 2022 and 6 October 2022 a number of requests were made by the Council to obtain access to the report of Dr Aiken which had been emailed to the Council (SOAF par 31). The Council criticised the Respondents for initially failing to provide the preliminary WCR because of difficulties its staff and solicitor had in accessing the preliminary WCR on their computers, as reflected in numerous emails identifying that the preliminary WCR could not be accessed by the Council. Mr Laird was cross-examined about the difficulty of accessing the preliminary WCR and his lack of ability to access the company email address to which it was sent. Ms Harte was also cross-examined about what had been sent to the company email account, which she could access, and she stated that she sent all correspondence to her solicitor. Given that the preliminary WCR was prepared and provided by Dr Aiken directly to the Council, that the Council could not access it at the time it was sent was not obviously a matter which the Respondents had control over. Mr Laird's evidence is that when he became aware of the access problem in October 2022 he contacted Dr Aiken by telephone to ask her to send the document again in a different format.
7. Non-payment of fees did not appear to be the primary reason why the initial WCR was preliminary. The Council did not consider the preliminary WCR supplied by Dr Aiken dated 29 September 2022 complied with Order 9. Further steps were taken by Mr Laird from March to September 2023 to obtain a compliant WCR from Dr Aiken, as detailed in his affidavit of 15 April 2024, as confirmed by the correspondence attached to that affidavit. A further report described as final dated 17 August 2023 was sent by Dr Aiken to the Council. The Council did not consider that satisfied Order 9, as advised to Mr Laird and Dr Aiken on 30 August 2023. Dr Aiken then stated she could not amend the report which meant that her involvement was effectively over. Further efforts by Mr Laird to have other consultants do work are detailed in his affidavit with one agreeing to do the work then becoming unavailable.
8. Focussing on Mr Laird, he claims he has had financial difficulties and has not been able to pay for all the services needed to complete the WCR. The Council submits that Mr Laird's financial affairs do not excuse his failure to comply in that he could have chosen to pay Dr Aiken's fees, or any other consultant he employed, but made other discretionary spending decisions which prevented this. The Council is critical of Mr Laird's management of his finances on the basis he could have arranged these to ensure that payment was available for a WCR that complied with Order 9, such as not going on a holiday with his family to Queensland in late 2022 and not purchasing a property at Sackville in 2023. Mr Laird was extensively cross-examined about his decisions to go on a holiday and purchase the property at Sackville. While these submissions can be accepted it does appear the required WCR is far more expensive than Mr Laird had anticipated when the 2022 Consent Orders were entered into.
9. While Mr Laird's oral evidence identified various amounts still owing or required to be spent, in re-examination he confirmed above in [48] he still owes Dr Aiken $40,000-$45,000, requires another $40,000 to get the waste on the Premises quantified and anticipates a further complete WCR will be necessary at a cost of $25,000 to $30,000. Mr Laird had thought that the original report would be about $30,000 in total. In other words, Mr Laird (and therefore Ms Harte) still needs to pay substantial sums in order to provide a compliant WCR to the Council assuming he can find a consultant to do the work.
10. While a WCR which satisfies the Council that Order 9 has been complied with has not been supplied it is not the case that there has been no attempt to provide such a WCR. Mr Laird's efforts appeared reasonably extensive in engaging Dr Aiken and then seeking to obtain another consultant to assess the amount of waste once Dr Aiken made clear her involvement was over. A challenging aspect of sentencing in this case is the failure to purge the contempt despite efforts made from essentially the first half of 2023 to April 2024 when Mr Laird provided his last affidavit. The complexity of waste issues affecting the Premises does put the time needed for the preparation of the required WCR and the practical ability of the Respondents to comply with the requirement into context but that and the lack of funds over a considerable period does not provide sufficient explanation for Mr Laird's failure to comply.
11. The Council also submitted the Court should not accept Mr Laird's evidence of his assets and income as a director and employee of his company Controlled Earthworks Pty Ltd as credible given what were submitted to be irregularities in the tax return for his company. A large amount of about $183,000 is claimed for depreciation compared to the worth of its assets according to Mr Laird of $60,000-$70,000 being equipment owned by the company used in excavation. The financial information provided by Mr Laird does not provide an adequate explanation of the assets and liabilities of Mr Laird's company.
12. The Respondents' counsel submitted that a finding of wilful disobedience requires proof beyond reasonable doubt of deliberate non-compliance, see Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [64] (Campbell JA, Hadley AJA and Bell J agreeing). While that can be accepted there is no basis to find that the failure to comply was deliberate.
13. Seriousness of contempt of court can lie along a sliding scale from technical/accidental through to wilful meaning deliberate, without a clear line necessarily dividing the two states. The contempt arising from failing to supply a compliant WCR by 21 May 2022, continuing to date, does not appear to have been wilful in the sense of deliberate disobedience, or to put it another way, the Council has not proved that beyond reasonable doubt. Efforts were made to comply throughout 2023 and into 2024, but these have ultimately been unsuccessful in part due to absence of funds. Attempts to purge contempt over a lengthy period of time without compliance being achieved can be considered wilful, see Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [19], cited in Council of the City of Sydney v The Owners Strata Plan No 18820 [2017] NSWLEC 81 at [39].

Mr Laird

1. In relation to Mr Laird, I consider the failure to comply with Order 9 is wilful given the length of time the order has not been complied with as considered above. Given that length of time and failure to comply, Mr Laird must arrange his financial affairs to enable him to pay for the adequate WCR required by Order 9 in order to purge his contempt. Criticisms of his evidence about his financial position by the Council outlined above are warranted given the discrepancies in what has been presented to the Court. These discrepancies suggest that Mr Laird could choose to arrange his affairs differently so that funds are available.

Ms Harte

1. Ms Harte's evidence in 2023 was that she left compliance with Order 9 to Mr Laird and she essentially relied on his evidence in that regard. The reason she gave for doing so was his greater knowledge about what was required. Mr Laird was to organise compliance with Order 9 and undertook making the arrangements to obtain a WCR on her behalf. Mr Laird also arranged for payment for work undertaken by Dr Aiken. While Ms Harte is the landowner Mr Laird appears to have been responsible for any arrangements made in relation to the Premises.
2. Ms Harte participated in the contempt proceedings through joint legal representation of the Respondents at the substantive hearing in 2023. The Respondents were not jointly represented during the further hearing in April 2024. Ms Harte did not appear and was not represented on 2 and 23 April 2024. I am unaware of her current circumstances or her ability to make arrangements for the provision of the necessary WCR separately to Mr Laird.
3. Her contempt is technical in that I do not consider it was deliberate or wilful in the same way that I have found Mr Laird's ongoing failure to comply is wilful because her reliance on Mr Laird appears reasonable in these circumstances.

Reasons for contempt

1. The contempt arose as a result of the Respondents agreeing to the 2022 Consent Orders and the reasons are essentially canvassed above. The Council has submitted that the failure to comply with Order 9 means that the onerous requirement in Order 10 is not triggered. There is no direct evidence to support such a submission but it is a consequence of the failure to obtain the WCR required by Order 9.

Deterrence

1. The Council submitted general deterrence should play a role in the proceedings relying on Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 at [60] as the Respondents actively agreed to the making of the 2022 Consent Orders. As I stated in Mifsud at [41]: [41] 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. The Council submitted that personal deterrence has a strong role to play in these proceedings given the antecedents of Mr Laird, the contempt has not been purged and remains ongoing and a number of requirements of the 2022 Consent Orders remain to be complied with after Order 9 is complied with in particular Order 10.

Denunciation of contempt

1. Punishment imposed for any contempt must also be a denunciation of contempt, Perdikaris at [62].

Sentencing of Mr Laird

1. As summarised in the Civil Trials Bench Book at [10-0300] the power to punish for contempt in civil proceedings is not fettered by criminal law statutes relating to procedure and sentencing, Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 (Dowling) at [43]-[45], He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (Sun) at [66]. The Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) does not apply to sentencing proceedings for contempt in the court's civil jurisdiction, Dowling at [12], [57]-[58], Sun at [38], [62]. The power to suspend a sentence, although no longer available under the CSP Act, survives in cases of contempt by virtue of Pt 55 r 13 of the Supreme Court Rules.
2. Further and different considerations arise in relation to sentencing each of the Respondents. Mr Laird's legal representative's submissions proceeded on the assumption that the CSP Act applied. It does not, as noted above, but does provide useful guidance on some aspects of sentencing.

Character and antecedents of Mr Laird

1. As outlined in the SOAF at par 35, Mr Laird was convicted and fined in the Local Court for offences under the Protection of the Environment Operations Act 1997 (NSW) relating to the pollution of land with waste including asbestos waste for which he was fined and ordered to pay substantial clean-up costs. Mr Laird has been issued with penalty notices for several failures to comply with clean-up notices issued by the EPA and the Council relating to several properties (including the Premises). Some of these notices have been paid, and some are the subject of payment plans. The relevance of this information is unclear. David Rolph, Contempt (Federation Press, 2023) states at 797 (footnotes inserted): Whether the contemnor has previously been dealt with for contempt of court will be a relevant factor in sentencing. If the contemnor has not previously been dealt with for contempt, that may be a factor in mitigation of any penalty to be imposed. If the contemnor has previously been dealt with for contempt, that will likely be a factor aggravating the penalty to be imposed. In terms of considering the contemnor's antecedents when sentencing for contempt of court, only previous convictions for contempt are relevant. [R v Giscombe (1983) 79 Cr App R 79, 84 (Lord Lane CJ); Ferguson v Dallow (No 5) [2021] FCA 698, [20] (O'Callaghan J); Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106, [9] (Rees J). It may be that convictions for offences which are similar to the conduct constituting contempt of court may be relevant when sentencing for contempt: Australian Competition and Consumer Commission v Levi (No 3) (2008) ATPR ¶52-257, 49,612 (McKerracher J); [2008] FCA 1586.] Previous convictions for other criminal offences are irrelevant when sentencing for contempt of court. [Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106, [9] (Rees J).] This reflects the unusual nature of contempt of court as conduct requiring sanction.
2. Mr Laird's antecedents do not appear to be relevant and are not an aggravating factor in this sentencing process.
3. In mitigation, Mr Laird submitted that he should receive a discount on sentence for the apologies he provided. Mr Laird's plea of guilty, agreement of facts and expression of apology in his affidavit dated 6 March 2023 can be accepted as demonstrating remorse.

Penalty for Mr Laird

1. Where contempt is civil, orders can be considered as remedial, being intended to secure compliance with a court's orders, Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [133] (Hayne, Heydon and Crennan JJ). The Council's submissions referred to possible options for punishment of imprisonment which can be suspended, sequestration of property and a recurring or periodic fine. While a fixed sum fine may be imposed that alone does not provide incentive for Mr Laird to comply with Order 9. In imposing any penalty, the Court can have regard to the capacity of the Respondents to pay the fine.
2. I do not consider imprisonment including on a suspended basis, a punishment of last resort, is warranted given my finding on the seriousness of the contempt in the circumstances outlined above. Sequestration of property in relation to Mr Laird could be considered for the premises he has bought at Sackville. The Premises the subject of the 2022 Consent Orders are owned by Ms Harte. The circumstances of either property is unknown. The purpose of sequestration of land is to provide funds derived from that land to those obtaining the order for sequestration. Given that compliance with Order 9 requires the preparation of a report the utility of making a sequestration order is not apparent.
3. No maximum penalty exists for contempt matters, and each case must be considered on its own facts. In Queanbeyan-Palerang Regional Council v Banks (No 2) [2024] NSWLEC 99 (Banks (No 2)) at [42] the council provided a list of nine potentially comparable cases showing a range of penalties from $8,000 to $77,400. Banks (No 2) concerned a contempt arising from failing to comply with court orders over a number of years with a number of mitigating factors. In Fairfield City Council v Camilleri [2024] NSWLEC 56 referred to in Banks (No 2) the respondent owned land which he used for the purpose of a 'waste or resource management facility', a prohibited use under the relevant planning controls. Consent orders were made by which the respondent was ordered to cease that use and remove all waste materials within three months. The consent orders were not complied with. The respondent pleaded guilty. The contempt was found to be wilful. Aggravating factors included the high level of seriousness of the contempt, that the contempt was ongoing, and the respondent presented no evidence of remorse. Removal of some of the waste and the respondent's mental health were mitigating factors. A penalty of $20,000 was imposed.
4. In light of the circumstances canvassed above, I consider a penalty of $15,000 is warranted in the case of Mr Laird. I will also consider the imposition of further fines of $15,000 every six months thereafter if there is an ongoing failure by Mr Laird to comply with Order 9. The factual basis for issuing a fine will have to be established by the Council on each subsequent occasion before any further fine is imposed by a judge of the Court exercising their discretion. Appropriate orders to allow for that will be discussed with the parties.

Ms Harte

1. As noted above the CSP Act does not apply to sentencing for contempt matters but can provide useful guidance in relation to matters to be considered. The following submissions which were not generally disputed by the Council, and which I accept, were made in relation to Ms Harte that: 1. Ms Harte does not have a significant record of convictions. The conviction she has (SOAF par 40) relates to the Premises, s 21A(3)(e). (As identified above in [99] convictions that do not arise from other than contempt of court convictions are not relevant.); and 2. Ms Harte is a person of good prior character, s 21A(3)(f), is unlikely to re-offend, s 21A(3)(g), and has good prospects of rehabilitation, s 21A(3)(h).
2. Ms Harte's agreement as to certain facts and plea of guilty are also mitigating factors although I note that the Council identified the contempt motions were originally returnable on 2 September 2022 and listed for mention several times before a plea was entered on 16 December 2022.
3. The need to reflect deterrence and denunciation objectives are less in the case of Ms Harte given my finding on the seriousness of her contempt. I am also mindful that Ms Harte's personal circumstances beyond being a parent of two children are largely unknown to the Court where Ms Harte was relying on Mr Laird to achieve compliance with Order 9 and the Respondents are no longer jointly represented. Ms Harte's one bank account and substantial liability for debts including fines relating to an EPA penalty notice suggest limited capacity to pay a penalty. Her income and employment status is presently unknown. Balanced against that is her ownership of the Premises in question on which the waste the subject of the 2022 Consent Orders is located, the removal of which in due course is likely to be a substantial cost if asbestos is identified. The value of the Premises as an asset if any is unknown.
4. Ms Harte is also potentially liable for the Council's legal costs together with Mr Laird and these are likely to be substantial. In all these circumstances no penalty will be imposed on Ms Harte.

Costs

1. Costs are generally awarded in favour of a council which commences contempt proceedings to enforce court orders in the absence of disentitling conduct and as costs awards are compensatory not punitive, see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 (Mason CJ). The Council seeks an order that its costs be paid by the Respondents on an indemnity basis, asserting that is the usual course in contempt proceedings, citing Perdikaris at [76], Pittwater Council v Martoriati [2013] NSWLEC 84 at [26]-[27], Blacktown City Council v Pearce [2013] NSWLEC 175 at [21]-[22], Blacktown City Council v Nitopi [2019] NSWLEC 40 at [219]-[223]. As the Respondents submit there is no fixed rule for how costs should be awarded in contempt proceedings. While indemnity costs are often awarded each case must be considered on its own facts, Hutley v Cosco [2016] NSWLEC 15 at [37]. Cases where costs are ordered to be payable on an indemnity basis often concern wilful or contumacious rather than unintentional contempt.
2. Costs payable on an indemnity basis by the First Respondent Mr Laird are appropriate in the present case in light of all the circumstances considered.
3. I will provide Ms Harte an opportunity to make submissions about whether and what order for costs ought be made in light of her capacity to pay. Finalisation of orders in relation to Ms Harte will be made at a later date which will be discussed with the parties.

Orders

1. The Court orders: 1. The First Respondent Mr Laird is fined $15,000 for failure to comply with Order 9 of the consent orders dated 21 March 2022. 2. If by 1 May 2025 Order 9 of the consent orders dated 21 March 2022 remains not complied with the Applicant Council can apply to the Court by way of notice of motion seeking the imposition of a further penalty of $15,000 on the First Respondent Mr Laird on proof being provided to a judge of the Court that Order 9 remains not complied with. 3. Every subsequent six month period commencing from 1 May 2025 further applications can be made by the Applicant Council to the Court by way of notice of motion seeking the imposition of a further penalty of $15,000 on the First Respondent Mr Laird on proof being provided to a judge of the Court that Order 9 remains not complied with. 4. The First Respondent Mr Laird is liable for the Council's costs of the notice of motion dated 22 July 2022 directed to him on an indemnity basis.

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