Liverpool City Council v Palerma Pty Ltd and Parilo

Liverpool City Council v Palerma Pty Ltd and Parilo - [2008] NSWLEC 311 - NSWLEC 2008 case summary — Zoe

[10]

EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendants, Palerma Pty Ltd and its sole shareholder and director/secretary Edmond Michael Parilo, have pleaded not guilty to two charges of contempt of court. The prosecutor, Liverpool City Council, alleges that Palerma Pty Ltd is in contempt because it has failed to comply with orders 3 and 4A which I made on 26 February 2008 in Liverpool City Council v Palerma Pty Ltd [2008] NSWLEC 88, and that Mr Parilo is in contempt in that he, as the human agent of Palerma Pty Ltd, aided and abetted that company in the breaches. The orders 2 The orders made on 26 February 2008 against Palerma Pty Ltd were as follows: "1. Declaration that the respondent by itself or its agents is using the land known as Lot 11 in DP 881728 (63) Orange Grove Road, Liverpool ("the land") for the purpose of the display of advertising on three (3) advertising structures one (1) approximately 8 metres by 5.49 metres in size ("sign A"), one (1) approximately 6 metres by 4.7 metres in size ("sign B") and one (1) approximately 8 metres by 5.49 metres ("sign C") (together "the advertising structures") and the display of flags attached to sixteen (16) flag poles ("the flag poles") contrary to State Environmental Planning Policy No 64 - Advertising & Signage ("SEPP 64") Liverpool Local Environmental Plan 1997 ("LLEP") and the Environmental Planning and Assessment Act ("EPA Act"). 2. Declaration that the advertising structures and flag poles erected upon the land are structures or works requiring development consent pursuant to the LLEP and that no development consent has been sought or obtained, contrary to the EPA Act. 3. Order that the respondent remove or cause to be removed from the land the advertising structures and flag poles within sixty (60) days of the date of the order unless in the meantime the respondent obtains development consent from the applicant for the continued use of the advertising structures and flagpoles. 4A. Order restraining the respondent its servants and agents from using the land for the purpose of the display of advertising unless or until a development consent authorising that use is granted and operative. Order 4A is suspended for sixty (60) days. 4B. Order restraining the respondent, its servants and agents from erecting or causing to be erected on the land any advertising structures unless or until a development consent authorising the erection of any such structures is granted and operative. 5. Order that the respondent pays the applicant's costs of the proceedings. 6. Liberty to both parties to apply on 72 hours' notice."

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Lord Oliver at 219 gave the example of A who, at the suit of B, has given an undertaking to the Court to demolish a wall and then a third party, C, out of spite against B, obstructs a right of way which A is entitled to use and needs to use to demolish the wall: "…C has impeded the administration of justice by deliberately thwarting an undertaking given to the court and designed to secure the removal of the wall. In circumstances such as these, it would seem to me unarguable that C is not in contempt of court in exactly the same way as if he had obstructed an officer of the court and I cannot imagine any court accepting as a defence to a motion for committal the proposition that no contempt is committed because C was not a party to the action or the undertaking." 13 Attorney General v Punch Ltd [2003] 1 AC 1046 was a case where a third party was found guilty of contempt. The Attorney General had obtained an interlocutory injunction to restrain a former MI5 officer and a newspaper publisher from disclosing material he had learned in the course of his employment in the Security Service. A third party, the editor of Punch Magazine, set about publishing material derived from the officer concerning the Security Service. The House of Lords held that he was guilty of contempt. The ratio of the decision is captured in the headnote: "…contempt of court consisted of interference with the administration of justice and would arise if there was intentional impedance or prejudice of the purpose of a court order; that, in the context of contempt of court proceedings, the purpose of the court in issuing an interlocutory injunction was the preservation of the rights of the parties pending a final determination of the issues between them rather than the litigant's purpose in seeking to obtain the order; that it followed that, in relation to an injunction restraining publication of information pending a decision as to whether it was entitled to protection on the ground of confidentiality, the actus reus of contempt lay in the destruction of the confidentiality of the material which it was the purpose of the injunction to preserve; and that, accordingly, the editor having wilfully published material which he knew the court had intended by its order to remain confidential, the actus reus and mens rea of contempt of court had been established…"

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15 There must be actual disobedience and there can be no disobedience if breach of an order occurs by reason of circumstances outside the control of the alleged contemnor: Lade & Co. Pty Limited v Black [2006] QCA 294, [2006] 2 Qd R 531 at [63]; applied Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 at [27] - [32]; followed Blue Mountains City Council v Fowler [2007] NSWLEC 476 at [15]. In Lade at [63] Keane JA held: "There must, of course, be actual disobedience. There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached. Nor could there be disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor." Conclusion 16 Contrary to orders 3A and 4, Palerma Pty Ltd has failed to remove or cause to be removed the advertising structures and flag poles and continues to use the land for the purpose of the display of advertising. No development consent as referred to in the orders has been obtained. The defendants did not even lodge a development application. Assuming that the alleged telephone conversation with Mr Coburn occurred, that does not, in my view, warrant the conclusion that the breach of orders 3A and 4 occurred by reason of circumstances outside the control of the defendants. They did not exercise liberty to apply to extend time for compliance with the orders if there was difficulty or delay in obtaining development consent. They communicated no explanation for the breach of the orders until the hearing of the contempt proceedings which, at least in part, were brought in order to enforce the orders. In my opinion, Palerma Pty Ltd wilfully disobeyed the orders and Mr Parilo, with knowledge of the orders, wilfully caused it to do so. The purpose of orders 3A and 4 was to terminate the unlawful erection of the advertising structures and flag poles and the unlawful use of the land for advertising. Having wilfully caused Palerma Pty Ltd to disobey the orders that he knew the Court intended should terminate the unlawful erection and use, the actus reus and mens rea of contempt have been established against Mr Parilo. 17 I find the defendants guilty of contempt as charged. I will proceed to hear the parties on sentence.

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