Liverpool City Council v Tirnova - [2020] NSWLEC 110 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

Liverpool City Council v Tirnova

[2020] NSWLEC 110

Land and Environment Court (NSW)|2020-06-29|Before: Moore J, Molesworth AJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-06-29

Before

Moore J, Molesworth AJ

Catchwords

R v Houlton (2000) 49 NSWLR 383

Source

Original judgment source is linked above.

Catchwords

R v Houlton (2000) 49 NSWLR 383

Judgment (47 paragraphs)

[1]

cil (Applicant) Eyup Tirnova (Respondent) Representation: Counsel: Ms N Hammond, barrister (Applicant) Mr E Tirnova, self-represented (Respondent) (assisted, by leave, by Ms R Tirnova and Ms G Tirnova)

[2]

Solicitors: Liverpool City Council (Applicant) File Number(s): 386138 of 2016 Publication restriction: No

[3]

TABLE OF CONTENTS Introduction Molesworth AJ's decision provides background to the present proceedings The Council's contempt proceedings The necessary amendments to the particulars The site Introduction The Moorebank Voluntary Acquisition Scheme The hearing Introduction Ms Hammond's written submissions on the charge The evidence The initial failure to prove service of the October 2017 Orders The unauthorised development Consideration of Mr Tirnova's guilt Characterisation of the contempt The extent of Mr Tirnova's compliance with Order (3) Introduction Demolition of the wall Removal and disposal of the rubble Conclusion on Order (3) The extent of compliance with Order (5) Introduction The position at the end of the closed charge period Compliance as at the date of the most recent inspection A current Building Information Certificate application The contempt continues The application of the Crimes (Sentencing Procedure) Act 1999 Consideration of Mr Tirnova's personal circumstances Introduction Mr Tirnova's evidence Introduction Mr Tirnova's evidence concerning Order (5) matters Mr Tirnova's evidence concerning his personal circumstances Mr Tirnova's subjective factors Comparability in sentencing outcomes The appropriate penalty Consideration of s 6 of the Fines Act Arrangements to make payment by instalments Costs Introduction The Council seeks its costs on the ordinary basis Appropriate exclusions from the costs order Introduction The matter of compliance with Order (3) The extent of the unnecessary photocopying in Exhibit A Lack of proof of awareness of Molesworth AJ's orders Ms Hammond's written submissions The building information certificate submissions and copies of building information certificate application documentation Orders

[4]

Introduction

On 13 October 2017, Molesworth AJ handed down his decision (Liverpool City Council v Tirnova [2017] NSWLEC 138) in Class 4 proceedings brought by Liverpool City Council (the Council) against Mr Eyup Tirnova (as First Respondent) and his wife and daughter (as Second and Third Respondents, respectively). His Honour's decision records that his Honour only made orders against Mr Tirnova. The orders that his Honour made were: The Court: (1) Declares that the First Respondent has: (a) Carried out development for the purpose of a dwelling house, namely the erection of structures in the form of: (i) a single-storey extension adding habitable rooms to the rear of an existing dwelling house; (ii) a sea wall at the rear of the premises; and (iii) a masonry and cement-rendered boundary fence at the front of the premises, on land described as Lot 67 DP 657033, known as 40 Newbridge Road, Chipping Norton (the Land), being land within Zone R2 Low Density Residential for the purposes of the Liverpool Local Environmental Plan 2008 and within which zone development for the purposes of dwelling house could only be carried out with development consent; and (b) breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out that development on the Land without first obtaining development consent. (2) Notes that Liverpool City Council has committed to taking no action with respect to the actions of the First Respondent which have led to the construction and current state of the sea wall at the rear of the premises abutting the Georges River. (3) Orders that the First Respondent, within 90 days of the date of these orders, to: (a) demolish the masonry and cement-rendered boundary fence at the front of the premises; (b) remove from the premises the materials resulting from the demolition of the fence to a lawful waste facility, save for any materials which are able to be reused in the construction of a replacement fence the subject of Note (4) below; and (c) provide a receipt to Liverpool City Council confirming that the demolished materials referred to in Order (3)(b) have been disposed of at a lawful waste facility. (4) Notes that Liverpool City Council has committed to allowing the Respondents to build with consent, a replacement front fence on the Land that is permeable and allows the unhindered flow of flood waters. (5) Orders that the First Respondent, within twelve months of the date of these orders, to: (a) demolish the single-storey extension to the existing dwelling house on the land; (b) remove from the premises the materials resulting from the demolition of the single-storey extension, together with nay other building materials stored on the premises associated with the original construction of the extension, to an appropriate waste facility, save for any materials which are able to be reused in the reinstatement of the rear to the existing dwelling the subject of Order (5)(d); (c) provide receipts to the Liverpool City Council confirming that the demolished materials referred to in Order 5(b) have been disposed of at a lawful waste facility; and (d) rebuild an appropriate rear to the existing dwelling, after the demolition of the extension, so that it may be returned to habitable use. (6) Notes that Liverpool City Council will facilitate the reinstatement of the existing dwelling so as to allow it to return to habitable use.
As can be seen from the terms of Orders (3) and (5), they required demolition of works which had been carried out at the site, a property in Moorebank on the Georges River, where those works had been effected without approval from the Council. The works are later described at [53] to [57].

[5]

Molesworth AJ's decision provides background to the present proceedings

To understand how and why his Honour's orders were framed as set out above, it is appropriate to provide a deal of background concerning the earlier decision and the significantly confined nature of the matters with which I am required to deal in these proceedings.
There is no doubt that Molesworth AJ had a deal of sympathy for the circumstances in which Mr Tirnova and his wife and daughter found themselves in the proceedings before him. A reading of his judgment from the concluding portion of [129] through to the end of [138] demonstrates this.
In particular, it is apposite to set out, in their entirety, [139] to [142] of his Honour's judgment in order to have an understanding of the circumstances with which his Honour was then dealing: 139 A critical material aspect of this matter is the intolerable delay of Liverpool Council in enforcing the law which, not surprisingly, left the First Respondent and his family in a state of uncertainty. Relatively soon after the First Respondent commenced his building works on the Land in 2010, a Council officer attended and photographed the premises in April 2011 and observed the works underway. It was not until 25 months later that another officer of Liverpool Council returned to the Land on 17 May 2013 to conduct a further inspection. With the passage of such an extended period, a property owner not versed in the planning or building system might understandably conclude that all was in order to the satisfaction of Liverpool Council. If such a period passed whilst an apparently more knowledgeable neighbour was concurrently assuring the First Respondent that approvals were not required, the mistaken understanding of the true position would have been compounded. 140 There can be no doubt that, had Liverpool Council acted expeditiously in April 2011 soon after the initial inspection of the Land - say by serving a stop-work order, or effectively conversing with the First Respondent and his family - the works in question might have ceased at a relatively inexpensive and reversible stage. Instead, by delaying 25 months, Liverpool Council allowed the works to be completed without appropriate warnings and stood by whilst the extension to the dwelling was occupied by a family who unknowingly had committed a breach of both the building and planning laws whilst expending their scarce funds. 141 It would be consistent with responsible conduct for public authorities, such as municipal councils, to be alert to the danger that inaction in response to a prima facie breach of the law by a citizen might be taken by that citizen as a de facto approval or at least a form of representation by way of acquiescence that all was in order. The avoidance of such situations is necessary. In the multi-cultural society that characterises the modern Australian city, such as Liverpool, there is a heightened duty resting upon the shoulders of those in authority to accommodate the differential understanding of English, as language can present real obstacles in understanding regulatory regimes. 142 Further, given that many of the citizens of our multi-cultural society come from countries with significantly differing legal and political systems, there is at least a moral obligation, which would be strategically sensible to embrace, for authorities to vigilantly go "the extra distance" to ensure that there is an understanding of the regulatory regime that is relevant to a person's actions once it is apparent that an irregularity is occurring. With hindsight, a non-confrontational conversation with the Respondents orchestrated by Liverpool Council back in April 2011, in which obligations and rights were clearly explained, might have obviated the need for the proceedings before the Court today. Unfortunately, this Court does not have the benefit of an H.G. Wells time machine to "turn the clock back".
His Honour further explained the issue of delay on behalf of the Council at [144]. This paragraph was in the following terms (emphasis in original): 144 Compounding the initial 25 month delay, there were a number of other extended periods of delay, as described in the chronology set out at paragraph 16 above. Despite the Respondents lodging both a development application (DA) and a building certificate application (BCA) with Liverpool Council on 12 September 2013, within three weeks of the service of the s 121B orders on each of the Respondents, it was not until six months later (on 26 March 2014) that the DA was refused and a further twenty eight months later on (27 July 2016) that the BCA was refused. Within a month of that refusal, a formal interview of the Respondents was conducted by Council officers as a preliminary step to the proceedings now before the Court, which were commenced on 23 December 2016. In all, five years and eight months had passed since Liverpool Council first inspected the Land in April 2011 and took photographs of the initial works.
His Honour engaged with these issues of the Council's delay as a significant timing factor to be taken into account in exercising his discretion (consistent with the decision in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335) as to how he should craft his orders in response to the circumstances, with respect to which he was faced (circumstances which included him having undertaken a site inspection and observing - as he recorded at [154] of his decision - the flood line on the living room wall of the Respondents' house and examining the photographs of the flooded interior).
As his Honour observed, at [159], it was appropriate to "soften the impact of the orders on the Respondents". As a consequence, his Honour provided Mr Tirnova three months to demolish the front fence and a more extensive period of time for the demolition of the rear extension to the dwelling (12 months as provided for in Order (5)) rather than the 90 days sought by the Council - see Molesworth AJ's judgment at [159].
I set out this context because it is appropriate to record that, during the course of the proceedings before me, matters were raised on behalf of Mr Tirnova by his wife seeking to recanvas matters which had arisen before Molesworth AJ. It was necessary for me to explain to Ms Tirnova that I was not re-engaging with the merit matters that had been dealt with in the earlier proceedings. I explained this to her in the following terms (Transcript, 29 June, page 41 lines 22 to 38): HIS HONOUR: No, I need to explain to you, Ms Tirnova, that I'm dealing with quite a narrow legal issue. I am not dealing with the merits of your building or otherwise. I am dealing with the question of whether or not your husband should be punished for not obeying the Court's orders and, if so, what punishment should be given to him. That's what I'm dealing with. It is a very confined legal issue. I will have regard to all of the material, including your husband's material that relates his health and finances and I will deal with the material that relates to your having been stood down by the airport because that letter from Ms Wilson to you is in evidence. Do you understand that? G TIRNOVA: Yes, yes, your Honour. HIS HONOUR: Whilst I can understand why these might be emotional times for you and your family, I am obliged to deal with the very narrow legal issues that arise from the proceedings that the council has commenced against your husband and I will do so, as I say, having regard to all of the material that is contained in the white folder.

[6]

The Council's contempt proceedings

By Notice of Motion filed on 23 March 2020, the Council commenced contempt proceedings against Mr Tirnova for what the Council said was his failure to comply with what had been required by the elements of Orders (3) and (5) made by Molesworth AJ in October 2017. The terms of the orders sought by the Council in the Notice of Motion were: (1) The Respondent is guilty of contempt by failing to do the works required by orders 3 and 5 made by this Court in Liverpool City Council v Tirnova [2017] NSWLEC 138 on 13 October 2017, within the time period required by those orders. (2) The Respondent is punished for contempt by the imposition of a fine. (3) The Respondent is to pay the Applicant's costs of this motion for contempt on an indemnity basis or, alternatively, on the ordinary basis.
As can be seen, the first proposed order raises a single, rolled-up charge for breaches of the two orders.
The Notice of Motion was accompanied by a Statement of Charge, a document which particularised the basis upon which the Council founded the charge laid against Mr Tirnova. The Statement of Charge set out four particulars upon which the Council relied. These particulars were in the following terms: (1) During the period between 13 October 2017 to 24 June 2019, the Respondent partially, but not completely, demolished the masonry and cement-rendered boundary fence at the front of the premises located on the Land, contrary to Order (3)(a) which requires demolition of the entire masonry and cement-rendered boundary fence at the front of the premises; (2) During the period between 13 October 2017 and 24 June 2019, the Respondent failed to remove from the Land materials resulting from demolition of the boundary fence at the front of the Premises located on the Land to a lawful waste facility and provide a receipt to the Applicant confirming disposal to a lawful waste facility, being materials that are not able to be reused in the construction of a replacement fence, contrary to Order (3)(b) and (3)(c); (3) During the period between 13 October 2017 and 24 June 2019, the Respondent failed to demolish the single-storey extension to the existing dwelling house on the Land, and rebuild an appropriate rear to the existing dwelling after demolition of the extension to return it to habitable use, contrary to Order (5)(a) and (d); (4) During the period between 13 October 2017 and 24 June 2019, the Respondent failed to remove from the premises the materials resulting from demolition of the single-storey extension to an appropriate waste facility and provide a receipt to the Applicant confirming disposal to a lawful facility, being materials that are not able to be reused in the reinstatement of the rear to the exist dwelling, contrary to Order (5)(b) and (c).
As can be seen, each particular proposed a closed charge period concluding on 24 June 2019.

[7]

The necessary amendments to the particulars

I have earlier set out the orders founding the basis of this single charge laid against Mr Tirnova. As can be seen from those orders, Mr Tirnova was given 90 days within which to comply with the three elements of Order (3) and 12 months to comply with the four elements of Order (5). As can also be seen from the terms of the particulars in the Statement of Charge earlier set out, each of the specific alleged breach periods were particularised as having commenced on 13 October 2017, the date of the making of the Court's orders. Such a proposition was clearly an absurdity - given that Molesworth AJ's Orders (3) and (5), although differing in the periods of time for compliance, each allowed a nominated period for compliance after the date of the making of the orders on 13 October 2017.
Ms Hammond, barrister for the Council, sought leave to amend the particulars to account for the necessity to reflect these periods allowed for compliance with each of the two orders.
These proposed amendments were not objected to by Mr Tirnova and, therefore, leave was granted to the Council to make them.
As a consequence, the closed charge period in the first and second particulars (relating to Order (3)) was amended to commence from 12 January 2018, whilst that for the two particulars concerning Order (5) was amended so that the closed charge period commenced from 13 October 2018.
These dates were those nominated by Ms Hammond. I note that the amendments to the first and second particulars relating to Order (3) reflected the commencement of the charge period being three months after the making of the Court's orders, rather than the 90 days provided in the orders, but nothing turns on that in these proceedings.
I am, therefore, required to determine, for the first two particulars, what was the extent of satisfaction (or of non‑satisfaction) of each element of Order (3) commencing on 12 January 2018 and concluding on 24 June 2019.
I am also required to determine, for the third and fourth particulars, what was the extent of satisfaction (or of non‑satisfaction) of each element of Order (5) commencing on 13 October 2018 and concluding on 24 June 2019.
However, with respect to Order (5), it is also appropriate to note, as later addressed in more detail, that Mr Tirnova's failure to comply fully with the requirements of that order is continuing. As a consequence, to the extent that he was in breach of that order at the end of the closed charge period, he remains in breach as at this hearing and his contempt to that extent has not been purged.

[9]

The Moorebank Voluntary Acquisition Scheme

Although not a matter directly impacting the sentence here to be imposed for Mr Tirnova's contempt, the Scheme does warrant being explained, and a limited comment made concerning it, as it provides background to the more specific matters following concerning Mr Tirnova's failure to fulfil the orders of the Court. Mr Tirnova has, without success, sought to sell the property to the Council through the Scheme (as later discussed).
As the name of the Scheme makes clear, it is one which permits the Council, to the extent that funds are available to it for this purpose, to negotiate an agreed price to acquire residential properties, which, as here, fall within the geographic area defined as so significantly flood-prone as to warrant the removal of human habitation from them.
It is not in contest in these proceedings (nor was it in contest in the proceedings before Molesworth AJ) that Mr Tirnova's site is in an area mapped by the Council as being in a flood-planning area (cll 7.8 and 7.8A of the LLEP and Flood Planning Area Map sheet FLD-014 of the LLEP maps). Indeed, although I have not undertaken a site inspection, Molesworth AJ did so during the course of the earlier Class 4 proceedings. What, relevantly, he observed was earlier noted at [7].
It is clear that his Honour assessed, at some considerable length in his judgment, the competing evidence before him about the nature and extent of flooding and flood risk to occupants of the dwelling on Mr Tirnova's site. His Honour also assessed the extent to which such flooding was expected to occur which would then expose not only those occupying the residence (but also those from emergency services who might be called upon to effect rescue of those occupants) to risk of hazard in the event of a significant flood.
It is not necessary (nor would it be appropriate) for me to revisit his Honour's conclusions as to why it was not appropriate, as a matter of discretion, to permit the unapproved additions to the dwelling (additions which his Honour recorded as increasing the floor space of the dwelling by 115%) to remain. As earlier noted, familiarity with the factual matters, and his Honour's thoughtful and lengthy analysis of matters he needed to take into account in the civil enforcement proceedings before him, is assumed for the purposes of an understanding of this judgment.
As a consequence of the risk of significant flooding within the locality where Mr Tirnova's site is located, the Council has had the Scheme operating. Detailed evidence concerning the operation of, and full extent of the area covered by, the Scheme is not before me. However, the reasonable inference with respect to it is that, in the fullness of time, the Council hopes to acquire all of the properties identified as being inappropriate to be occupied as a consequence of the flooding risk. Evidence concerning the Scheme relevant in the context of these proceedings was given by Mr Milicic, the Council's Manager, Property. Mr Milicic's affidavit dated 19 May 2020 was at folios 330 to 333 of Exhibit A. His evidence was to the following effect, at Exhibit 2 to his affidavit: The Moorebank Voluntary Acquisition Scheme (MVAS) commenced in 1984 and is planned acquisition, by voluntary process, of flood affected properties located along the Georges River at Moorebank/Chipping Norton in the vicinity of Newbridge Road, Rickard Road, Davy Robinson Drive and Arthur Street.
Mr Milicic was not required for cross-examination.
However, it is to be noted that the Council can only make limited budgetary provision for the acquisition of such properties - with few such acquisitions ordinarily being effected each financial year (as shown by the letter at Appendix 21 to the affidavit of Mr Milicic at folio 415). Whilst the State Government may, from time to time, provide funding for such acquisitions, it is clear that such funding is somewhat ad hoc and does not necessarily occur on any predictable recurring basis.
The evidence concerning Mr Tirnova's interaction with the Council seeking that it acquire the site through the Scheme was set out at folios 401 to 415 of Exhibit A. This evidence comprised not only what was set out by him in his affidavit but also in a number of e-mails, copies of which were appended to Mr Milicic's affidavit.
From this evidence and from what Mr Tirnova said during this hearing, it is clear that, during the past 12 months or so, Mr Tirnova and his family have now come to an acceptance that the desirable outcome for them (and for the Council) is that the site be purchased pursuant to the Scheme. Although the Tirnovas and the Council have engaged in acquisition discussions, it is clear from Mr Tirnova's evidence (and the documents noted above from Exhibit A) that agreement was not able to be reached on an acceptable acquisition price. Clearly, the Tirnovas considered that the price offered by the Council does not reflect the proper value of their property.
It is also clear that the Council, as a responsible governing entity administering public funds, is bound to negotiate in an appropriate, but limited, commercial fashion, having regard to such professional valuation advice as it may have received.
It is not in contest that the rate of purchase of properties pursuant to the Scheme has been steady and has been limited by the ability of the Council to provide funds for such acquisitions in each annual council budget. It was not contested that, during the recently finished 2019/2020 financial year, the Council had acquired few properties pursuant to the Scheme.
As can be seen from the above discussion, negotiations between Mr Tirnova and the Council were unable to reach fruition, as the parties were unable to reach agreement on a price for acquisition.
During the course of the hearing, in light of the evidence given before me concerning Mr Tirnova's financial circumstances (these matters as earlier considered) and they having been discussed before Molesworth AJ (as noted at [131] of his Honour's judgment), it would appear clear that it is likely that, in these harsh economic times brought about by the COVID-19 pandemic when coupled with Mr Tirnova's personal physical circumstances that are continuing, his failure to fulfil all the requirements of Order (5) will continue.
Under those circumstances, it may be that practical resolution to the risks associated with the unlawful dwelling elements constructed of the site will only arise when and if the Council is able to acquire the site through this acquisition scheme.

[14]

The unauthorised development

Two elements of the unauthorised development on the site provided the basis for the orders made by Molesworth AJ in October 2017. The first element was the construction of a masonry panel wall with engaged piers along the street frontage of the site. This masonry wall comprised the structure which resulted in his Honour making the three elements of Order (3) earlier set out. However, with respect to this wall, two additional matters warrant being noted. The first is that, in [13] of his Honour's judgment, his Honour noted: 13 Whilst the Respondents initially opposed the making of a demolition order with respect to the front fence, the Respondents subsequently withdrew this opposition and agreed to remove the fence. I note that Liverpool Council stated in its closing submissions that "[t]he fence can be replaced with an appropriate fence, such as a pool-style fence with horizontal metal railings that would permit the flood waters to flow through it unimpeded".
The second matter to be noted is that Order (4) made by his Honour comprised a notation responsive to the above quoted paragraph from his Honour's decision.
The second element of the unauthorised development on the site was the construction of a rear extension to the existing dwelling - a rear extension comprising a living/dining area; two additional bedrooms (one with an ensuite bathroom); a laundry; and an alfresco external area comprising a covered deck with steps leading to the rear yard of the site.
The Council had earlier refused a development application and a building certificate application by which approval for these extensions to the dwelling had been sought (see Molesworth AJ's decision at [16]). The plans for that refused development were in Exhibit A at folios 317 to 322. Those plans make it possible to establish that the height of the rear deck was approximately 0.7 metres above ground level, a height consistent with a photograph contained in Exhibit A at folio 445. The development, as dealt with by his Honour, had also had the subfloor areas of this unauthorised extension to the dwelling enclosed by a form of cladding.
The front fence and the enclosure of the subfloor area were matters of concern to the Council as to the extent to which they would impede the water flow during a flood event affecting the site. The floor level of the dwelling is well below anticipated future (as well as past actual) flood levels.

[15]

Consideration of Mr Tirnova's guilt

Mr Tirnova acknowledged, at the earliest reasonable opportunity, that he had not carried out all of the matters required by Orders (3) and (5) in their entirety within the relevant period set by each order (the amended particularisation as earlier discussed being ameliorative of the extent of the alleged breach of each of the orders). However, it is still necessary that I examine critically the extent to which his guilt is (or is not) established on the evidence adduced by the Council in light of the fashion in which the single charge alleges breaches of both orders and for specified (but different) closed charge periods.
Ordinarily, it might be expected that the extent of any breaches would be self‑evident (and, frequently, demonstrated on the basis of a set of agreed facts which are tendered).
However, for two reasons, it is necessary that I undertake a critical evaluation of the evidence because of the rolled-up nature of the single charge against Mr Tirnova in circumstances where, between them, Orders (3) and (5) contain a series of separate and differing obligations to be satisfied for compliance. This is particularly important in the context where Mr Tirnova is a self‑represented litigant, who required assistance in these proceedings (and in the earlier proceedings before Molesworth AJ) in order to understand fully and respond to the matters being discussed.
As will be seen from my later discussion, Mr Tirnova's acknowledgement of non‑compliance with the two orders, on proper examination of the Council's evidence, is not to be taken, on the basis of that evidence, to be an unqualified admission of guilt. Indeed, guilt must be established by the Council (to the criminal standard of proof) on the evidence as applied to the particulars pleaded by the Council.
At the commencement of the relevant time period as now particularised, complete compliance with all the elements of Order (3) had not been achieved. Nonetheless, Order (3)(a) had, as later explained, been fully satisfied by the time ordered for compliance and Order (3) had been satisfied in its entirety by the conclusion of the relevant closed charge period as particularised.
Although Order (5) had not been satisfied completely as to any of its elements by the conclusion of the relevant time period as particularised (and remains unsatisfied), some limited attempt at compliance with Order (5)(a) had been undertaken - thus giving rise to a position that also requires further examination.

[19]

Demolition of the wall

It is to be remembered that, on the amended particularisation earlier discussed, the Council alleges that Mr Tirnova had not complied with the terms of Order (3)(a) (the demolition requirement) by 12 January 2018 and that he remained in breach as at 24 June 2019.
For the purpose of this allegation, the Council relied on an affidavit of Ms Rosalie Jones, an Investigation Officer employed by the Council. Her evidence, relevant for the purposes of this point, was in an affidavit dated 20 March 2020. This affidavit and its annexures were contained in Exhibit A, at folios 68 to 168. Ms Jones was not required for cross-examination.
In his first, undated affidavit, Mr Tirnova said (Exhibit A, folio 423) on the topic of Order (3)(a): I have demolished the front fence after the orders were served. I was given a timeframe of three months to complete this order. Complying with this order, I did demolished the front fence leaving the piers so I could put fool [sic] fence in between them, so in the event of a flood water will flow freely. I then e-mailed Rosalie Jones explaining to her that I had demolished the front fence. She responded on 16 May, outlining the orders again.
Ms Jones dealt, relevantly, with the state of the wall as at an inspection by her on 12 January 2018 at paragraph 7 of this affidavit. The relevant part of that paragraph was in the following terms: … While there I observed the following: (a) The cement rendered masonry fence at the front of the property had not been fully demolished. (b) Part of the cement rendered masonry fence had been removed. (c) ... (d) Building materials from the partial demolition were being stored in the front yard of the premises.
Annexed to her affidavit, relevant to this point, was a photograph of the state of the wall at the street frontage of the site as at 12 January 2018. That photograph was at folio 128 of Exhibit A.
As can be seen from the photograph (particularly when examined in conjunction with the photograph at folio 126), all that remains of the street-frontage wall is a low pediment together with five piers.
It is to be taken from this photograph that those piers constitute the engaged piers that would, necessarily, have been required for structural support of the masonry infill panels between them. A copy of that photograph is reproduced below.
A second affidavit from a council officer is also relevant to the question of compliance with Order (3)(a). This affidavit, dated 20 May 2020, set out the evidence of Mr Hossain, an officer of the Council whose role is Coordinator Floodplain and Water Management. Mr Hossain's evidence was given on the basis that he was qualified to give expert evidence on flooding‑related matters and his affidavit (appearing at folios 213 to 216 of Exhibit A) included, at paragraphs 2 to 4, the necessary attestation of his acceptance of his obligations to the Court in the giving of expert evidence. It is to be observed that Mr Hossain was not required for cross-examination.
At paragraphs 10 and 11 of his affidavit, Mr Hossain dealt with the state of the front wall of the site in the following terms: 10 I have reviewed the Respondent's documentation, including the photograph of the portion of the front fence that remains standing. I understand that the Respondent seeks to retain the masonry fence columns and footings and to construct pool fence - type fencing in between those piers. 11 In my opinion, the proposed "pool type fence" between the existing columns is acceptable to Council subject to the following requirements being satisfied: (a) Fencing posts (typically made of aluminium or steel) to be installed between the masonry columns shall be limited to permeable open type fencing with a gap of at least 100 mm between the posts; (b) Fencing shall be constructed in a manner that does not obstruct the flow of floodwaters so as to have an adverse impact on flooding and (c) Fencing shall be constructed to withstand the force of floodwaters or collapse in a controlled manner so as not to obstruct the flow of water, become unsafe during times of flood or become moving debris.
It is not contested that the state of the wall, as shown in the photograph from Ms Jones' evidence (reproduced at [79]), remains the position of that wall as at the date of my hearing of these proceedings on the Council's single, rolled-up contempt charge.
During the course of Ms Hammond's submissions, I drew her attention to the above paragraphs from Mr Hossain's affidavit. I enquired of her whether it was the Council's position that, if Mr Hossain was to be required to give oral evidence, that evidence would necessarily be that his expert conclusion, as at 12 January 2018 (had he been required to express such a conclusion), would have been in the same terms as the conclusion which he expressed concerning the current state of the wall of the street frontage of the site. Ms Hammond indicated, quite reasonably, that she would need to seek instructions on that point.
I was subsequently advised by her that the Council accepted that, if he had been required to give it, Mr Hossain's evidence concerning the state of the fence as at 12 January 2018 would have been in the same terms as he had, in fact, given concerning the state of the fence as it currently is (Transcript, 29 June 2020, page 33 lines 13 to 20): HIS HONOUR: Do you concede for the purposes of these proceedings that it is appropriate for me to draw the inference that the opinion expressed in paras 10 and 11 would have been the opinion expressed by Mr Hossain on 12 January 2018 if he had been provided with the photograph appended to Ms Jones' evidence of the state of the fence as at that date, which remains the state of the fence as it is now? HAMMOND: Yes, I do, your Honour.
That concession was entirely properly made, given that there has been no change to the state of the fence, as depicted at [79], and its current state (the subject of the paragraphs set out from Mr Hossain's affidavit).
Ms Hammond, however, submitted that the present state of the fence demonstrated that it had not been demolished entirely and that, therefore, Mr Tirnova remained in breach of Order (3)(a).
She also submitted that it was appropriate that I have regard to the fact that Mr Tirnova had not yet submitted a development application for the erection of new fence elements that would comply with the design elements discussed in Mr Hossain's affidavit (being elements which reflected Order (4) of the decision of Molesworth AJ of 13 October 2017). Ms Hammond's submission and my response are set out below (Transcript, 29 June 2020, page 32 lines 26 to 47): HAMMOND: The council's position on the fence and the orders it seeks in relation to the front boundary fence, although everything your Honour has said in terms of the planning and flood expert opinions about the feasibility or acceptability of a development consent should one be sought, that the council wishes to press the orders that it seeks on the basis that the orders that the court made required the entirety of the fence to be removed and it was not. The evidence before the Court about the council being prepared to accept the remaining portions of the fence to remain goes more to the council's obligations under order 4 which was that council facilitate a new fence being, and I note a replacement fence, being constructed. So that's all I can say about that, your Honour. Those are my clear instructions, that the evidence in relation to the acceptability of a development application in the manner suggested by Mr Tirnova is certainly relevant to the council's obligation because, you know, it has addressed that because it understands that it had obligations to assist the respondent but at the end of the day the respondent needed and still needs to put in a development application - HIS HONOUR: But you missed the point, Ms Hammond. The question of a development application to the council is made quite clear with respect to para 12 on folio 215 as to adding material to the existing piers for the purposes of creating a fence. It does not address in terms the necessity for demolishing the piers.
The submission advanced on behalf of the Council concerning the failure of Mr Tirnova to lodge a development application for a new fence is, in the context of the allegation of non-compliance with Order (3)(a), a complete irrelevance. There is nothing in the terms of this element of Order (3) requiring Mr Tirnova to lodge a development application for any further works to the elements of the fence which presently remain on the site. Such an application would only be necessary if Mr Tirnova proposed to re-establish a front fence consistent with the approach dealt with by Molesworth AJ as earlier discussed at [53] and [54].
I therefore reject this submission that the absence of making any application to re-establish the front fence has any role to play in these proceedings.
It also necessarily follows from Mr Hossain's evidence (and the concession made with respect to it) that, as at 12 January 2018, Mr Tirnova had, to the satisfaction of the Council's relevant expert, sufficiently complied with Order (3)(a). Given the earlier recorded concession based on the uncontested expert evidence on behalf of the Council, it is not open to the Council in these proceedings to complain that Mr Tirnova remains in breach of that element of Order (3).

[23]

The position at the end of the closed charge period

As earlier noted, the amended particularised charge period was a closed one, with the extent of the non-compliance with Order (5) requiring to be understood as at 24 June 2019.
Although Ms Jones' inspection of 16 May 2019 was relevant to obtaining an understanding of the fact that Mr Tirnova had complied with Order (3), it is not relevant to an understanding of the extent to which Mr Tirnova might have complied with Order (5). This position arises because her observations made on 16 May 2019 concerning the rear extension to the dwelling took place a little over a month earlier than the cut-off date for the closed charge period as particularised.
It therefore means that, for the purposes of assessing the state of compliance by Mr Tirnova with Order (5) at the end of the closed charge period, it is necessary to have regard to her evidence concerning her inspection on 11 December 2019, this being the first inspection undertaken by her after the expiry of the charge period (affidavit of 20 March 2020 at Exhibit A, folio 75). Her evidence in this regard, was in paragraph 24(c) on folio 75 of Exhibit A. Ms Jones deposed that: On 11 December 2019 an inspection of the property was conducted from the Street and adjacent parklands. I did not speak to the owners the property during the inspection. I observed the following: • …; • …; • The single storey extension to the rear of the dwelling house with attached awning had not been demolished.
She deposed to the taking of a number of photographs on 11 December 2019 (at paragraph 25 of this affidavit). The photographs at folios 163 and 164 of Exhibit A (part of the list of photographs in paragraph 25 of her affidavit) clearly show that the flat-roofed extension at the rear of the dwelling remained in place as at the date of that inspection.
Ms Jones deposed a further affidavit dated 19 May 2020. It was an affidavit responsive to Mr Tirnova's first, undated affidavit in these proceedings. This affidavit set out her response to the material provided by Mr Tirnova concerning the state of the unauthorised extension at the rear of the dwelling on the site as shown in his photographs at folios 199 to 204 of Exhibit A. Her response, in paragraphs 15 to 17 of this affidavit (Exhibit A at folios (175-176)), was in the following terms (emphasis in original): 15 Order 5(a) requires that the single-storey extension to the existing dwelling house on the Land is to be demolished. The extension is described in Paragraph 130 of the Judgment as comprising "a new lounge area, a third bedroom, a fourth bedroom with ensuite, a laundry and an alfresco area opening to a small rear deck". Plans showing which parts of the building were to be removed that were before the Court during the hearing are attached as Annexure C. 16 I have viewed the photographs in the document titled 'Photo evidences of demolition'. The photographs show that the timber stairs leading from the rear deck area have been removed, and timber beams enclosing the deck sub floor area have been removed. 17 The photographs do not demonstrate compliance with the orders 5(a), (b), (c), or (d) as the parts of the building as listed above have not been demolished.

[25]

A current Building Information Certificate application

Toward the end of the hearing, I was advised by Mr Tirnova's wife (Transcript, 29 June 2020, page 41 lines 44 and 45) that a fresh application had been lodged with the Council (on Friday 26 June 2020) seeking a Building Information Certificate for the rear extension to the house in its present state. Such a Building Information Certificate, if issued pursuant to s 6.25 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) would have the effect of precluding for seven years any further action by the Council in reliance on Order (5)(a).
If this Building Information Certificate application is refused, Mr Tirnova will have the right to make a merit appeal to this Court against that refusal (s 8.25 of the EP&A Act).
Such a Building Information Certificate, if given, would also have the effect of purging his contempt in this regard as it would amount to an acceptance by the Council that it was no longer appropriate to require the demolition of the presently remaining structures in the rear extension of the dwelling on the site.
As this application had been made on the Friday before the hearing, which took place the following Monday, it is understandable that, first, no documentation concerning this application had been filed and, second, Ms Hammond was unaware of the application and had certainly not been briefed with any of the documentation relating to it. The relevant extract for the transcript dealing with this was in the following terms (Transcript, 29 June 2020, page 44 line 14 to page 46 line 2): HIS HONOUR: On the assumption, for the purposes of what I'm about to ask you, make the assumption that there was such a building information certificate application made. What do you say I should-- HAMMOND: For what-- HIS HONOUR: What do you say I-- HAMMOND: For what though, your Honour? I don't know what the building information certificate is in respect of. R TIRNOVA: It's a certificate obtained for unlawful works which the council issue for seven years. HIS HONOUR: Yes, I understand what it is. So Ms Tirnova, you tell me that it is for everything at the rear of the old house that remains there, is that correct? R TIRNOVA: That's correct, your Honour. HIS HONOUR: So I want you to make that assumption, Ms Hammond, and if it turns out not to be the case that such a certificate application has been lodged then, in the interests of finishing the matter now, you can have leave to send a confirmatory or otherwise e-mail to my associate, provided it's copied to the Tirnovas. HAMMOND: Yes. Your Honour, I draw attention to the judgment at para 3 on folio 8 which the Court noted that the council had refused a DA but also a building certificate application which sought to regularise the unauthorised development on the land. So my submission, assuming that the building information certificate is then the same for the earlier, that the-- HIS HONOUR: But it's clearly not, is it? For two reasons. The fence is not there - three reasons. The fence is not there, the alfresco area is not there and at least, as I recollect what was said in-- HAMMOND: The sea wall. HIS HONOUR: No. Somewhere in the evidence the infill underneath the unlawful extension that might have had the potentiality for blocking floodwaters has been removed. HAMMOND: Your Honour, in terms of the judgment and the way that the evidence came out in terms of the doubling of the size of the dwelling, so I understand what your Honour is saying in terms of those differences but my view would be, taking on board the approach taken by the Court, the concern the Court had about the more than doubling in size of the property, the concerns about safety of the occupants given that double the number of people could now reside in the property as had resided before but, importantly, the undermining of the regulatory system and proper planning in the floodway in terms of encouraging the unauthorised developments of this nature, the council would not approve for similar reasons a building information certificate. But, your Honour, I will - depending on my instructions and the nature of the building information certificate, I hear your Honour in terms of the opportunity to come back to you if I consider there's anything that would change that submission, obviously copying in the-- HIS HONOUR: No, I'm not - unless anything you were going to come back to me with was ameliorative as far as the submissions are put with respect to Mr Tirnova, then I don't need to hear from you further and-- HAMMOND: I understand. HIS HONOUR: --I'm proceeding on the assumption that you will at least check whether there is a building information certificate application, as I have been told, that encompasses the entirety of the present remaining building elements at the rear of the house in their present state with the three alterations that I presently understand to be the position. It may also cover the piers of the front fence but it seems to me that that is a matter of minor consequence under the present circumstances. R TIRNOVA: Your Honour, if it helps, I'm happy to give them the receipt number that we've received for them to go through their files that we did lodge this information certificate application. HIS HONOUR: Can I suggest that you e-mail that detail? It's not something I need to deal with now. You can e-mail that information to whoever forwarded you the copy of the affidavits earlier or for any other person that may be appropriate, but I don't need to have the receipt number at this time. Ms Hammond will certainly get instructions as to whether there is such an application and she will advise my associate but, more importantly, at the same time she will have that advice conveyed to you as well. If there's nothing further, Ms Hammond, I reserve my decision. HAMMOND: Your Honour, I just had a text message from my instructing solicitor confirming that a building information certificate application was lodged on Friday but that council hasn't had time to process or assess yet. HIS HONOUR: I wouldn't have expected that it would have, merely that I note that the council accepts that it has been lodged.
The following day, Ms Louise Steer, an in-house solicitor at the Council, e‑mailed to my Associate a copy of the Building Information Certificate application lodged with the Council on 26 June 2020, together with all the supporting documentation lodged with the Council in support of it. The terms of the e-mail were: Due to the late information received from the respondent during yesterday's hearing that they had lodged a Building Information Certificate Application on 26 June, the applicant is of the view that some brief submissions about that application should be made for completeness. Note that the size of the attachment is due to the size of the BIC application. Those submissions with the BIC application attached have been filed and are respectfully submitted for his Honour's consideration. We do not object to allowing the respondent the same opportunity for submissions on this point and include them in the copy line of this e-mail, along with Alvin Morales, the applicant's Acting Deputy General Counsel and barrister Natasha Hammond. This concludes the applicant's case.
This material totalled 16 pages. This material was accompanied by short written submissions from Ms Hammond addressing the history of the material attached to this Building Information Certificate application and making submissions as to what regard I might have to it, particularly what, she submitted, I should anticipate was the likely outcome of this application.
My immediate reaction was to ensure that Mr Tirnova (who had been copied into the e-mail sent to my Associate) had an opportunity to respond to the material and the submissions made by Ms Hammond. My Associate sent an e-mail to Mr Tirnova in the following terms: His Honour has asked whether you have any further submissions you wish to make in response to the Council's final submissions filed today. These submissions were copied to you but, for your information, I have attached them to this e-mail also. If you do not have anything further to add, would you please advise by return e-mail. If you do have further submissions you wish to make, would you please provide said further submissions to me by 5.00 pm Friday 10 July 2020. I look forward to receiving your response.
On reflection overnight after the receipt of this material, I concluded that it was entirely inappropriate that I have regard to anything other than the fact that the Building Information Certificate application had been lodged on Friday 26 June 2020 and that it remained undetermined. That information was what had already been confirmed to me as can be seen from the earlier concluding lines of the transcript extract I have quoted.
As a consequence, I caused my Associate to send a further e-mail to Mr Tirnova (copied to Ms Hammond's instructing solicitor) on the morning of Wednesday 1 July 2020 explaining the conclusion I had reached overnight and indicating that there was no need for Mr Tirnova to make any submissions concerning the material. The terms of that e-mail were: There is no need for you to reply to Ms Hammond's submissions concerning the Building Information Certificate. His Honour has asked me to explain why. His Honour has considered, further, the material provided to him yesterday concerning the Building Information Certificate application lodged with the Council on Friday 26 June 2020. It was appropriate that he be provided with confirmation that such a Building Information Certificate application had been made. His Honour did not give permission for Ms Hammond to make written submissions concerning the Building Information Certificate application. Although his Honour had me advise you yesterday that you had until Friday 10 July 2020 to respond to Ms Hammond's submissions, after considering the matter further overnight, his Honour has concluded that the appropriate course of action is to reject the submissions and the Building Information Certificate application documents in their entirety, simply treating the e-mail from Ms Steer as acknowledging the fact that a Building Information Certificate application had been made to the Council as his Honour had been advised during the course of the hearing. It is, therefore, unnecessary for you to make any submissions in reply to Ms Hammond's comments or to any of the documents provided to his Honour.

[29]

Introduction

There are two different contexts within which Mr Tirnova's personal circumstances require to be considered. The first of these, encompassing consideration of not only his financial circumstances, but also his physical health, arises in the context of the extent to which they provide any exculpatory explanation for his failure to comply fully with all the elements of Order (5). The second context arises in my consideration, pursuant to s 6 of the Fines Act 1996 (the Fines Act), as to whether his financial circumstances warrant any amelioration of the penalty otherwise appropriate to be imposed on him.
For these purposes, it is appropriate to set out such information as I have available to me concerning Mr Tirnova's position. In doing so, it is appropriate to note that, during the course the hearing, I observed to Mr Tirnova that Ms Hammond had not indicated that she wished to cross-examine him concerning his affidavits and supporting documents in evidence as part of the Court Book (Transcript, 29 June 2020, page 35 lines 26 to 29).
Second, Ms Hammond also indicated that she did not wish to make any submissions concerning Mr Tirnova's personal circumstances, observing (Transcript, 29 June 2020, page 43 lines 12 to 15): Your Honour has said that you will have regard to the health and finances. That's evidence that's before the Court. I don't have anything further to say about that but obviously understand that, in sentencing, those subjective matters are of relevance to the Court.
These positions adopted by the Council were entirely understandable in the context of both Mr Tirnova being self-represented and the hearing being conducted in less than ideal circumstances as a consequence of the COVID‑19 pandemic. This is to be contrasted with other cases in my experience, such as Wollongong City Council v Eldridge [2017] NSWLEC 35, where financial capacity to pay a fine has needed to be considered as a consequence of that council actively investigating Mr Eldridge's financial circumstances and subjecting him to rigorous cross-examination as to the adequacy and accuracy of his disclosures. In noting this, I am not to be taken to be being critical of the Council's position in these proceedings.
However, the result is that I am left to address both aspects on the basis of such limited evidence as I have from Mr Tirnova's affidavits and their attached documentation together with the submissions that were made by him or on his behalf by his wife and daughter.

[32]

Mr Tirnova's evidence concerning his personal circumstances

In his first, undated affidavit, Mr Tirnova said (folio 224 of Exhibit A): Also, meanwhile, during this stressful period, I had a heart attack and had two stents placed in my heart. Amongst all this 22nd of August I lost an immediate family member. I have been having injections into my left [eye] due to glaucoma.
With respect to these matters, Mr Tirnova provided a copy of a death certificate (folio 426) of his wife's brother (Transcript, 29 June 2020, page 18 lines 21 to 23). He also provided a medical certificate (folio 432) attesting to the extent of his own medical issues.
Later, in his first, undated affidavit (at folio 424), Mr Tirnova said: During the 11 years of this matter, this has had a major effect on my health. The ongoing stress this has caused has affected my mental well-being, my health is deteriorating and financially struggling as I cannot work.
Mr Tirnova also provided a second affidavit, dated 25 May 2020, in which he gave further evidence concerning his and his wife's financial circumstances. Relevantly, the affidavit says: 1 As previously emphasised, I am extremely stressed predominantly due to the emotional toll of this matter and my deteriorating health and financial well-being. The COVID-19 global pandemic has worsened this situation further. I am still unemployed due to my back injury and my partner has now been stood down and her superannuation balance has reduced significantly. Please refer to evidence one (stood down) of her being stood down. 2 Unfortunately I still have a mortgage on this property and the future is extremely concerning for me as I no longer have any funds remaining in my superannuation account (evidence two - superannuation funds). I applied for financial hardship in 2017 due to my unemployment and to finance Council matters. I am not sure if I can bear this situation any further and want to sell this property as soon as possible.
As the first annexure to this second affidavit, Mr Tirnova appended a letter from his wife's employer indicating that, as a consequence of the pandemic, she had been stood down from her employment. Mr Tirnova also appended copies of superannuation statements from September 2018 (difficult to read in their photocopied form but unchallenged by the Council) that show a negligible balance in his superannuation account.
These financial circumstances are merely the present manifestation of similar poor financial circumstances that were accepted as being the position in 2017 by Molesworth AJ (see his Honour's judgment at [131] and [132]).
This evidence concerning his financial circumstances requires further consideration in my assessment of what moderation of the appropriate penalty, if any, I should make as a consequence of engagement of the s 6 of the Fines Act.
However, his straightened financial circumstances and poor health do provide an explanation as to why he cannot afford to have the demolition undertaken by contractors and why he has personally been unable to carry out more than the limited demolition already effected.

[33]

Mr Tirnova's subjective factors

Only a very limited number of the matters set out in Wood v Staunton are relevant in the circumstances of this case. They are also factors which find parallels in the relevant provisions of s 21A of the Sentencing Procedure Act. In particular, it is appropriate to have regard to Mr Tirnova's personal circumstances in the broad context of appropriate and relevant matters contained in s 21A(3) of the Sentencing Procedure Act.
Only two matters of those broadly arising from s 21A(3) of the Sentencing Procedure Act require for immediate consideration. Others of Mr Tirnova's subjective factors concerning his personal health position and his and his wife's financial position arise for consideration in the context of s 6 of the Fines Act - a provision to which I will need to return in the context of determining the extent of the appropriate penalty to be imposed on Mr Tirnova.
However, for present purposes, it is sufficient to note that Mr Tirnova has no convictions for any offences relevant to these proceedings and the Council does not suggest that there are any.
In the context of assessing whether or not Mr Tirnova has expressed contrition and remorse for his failure to comply completely with the terms of Order (3) within the time ordered for that and his continuing failure to comply completely with Order (5)(a), or at all with the remaining elements of Order (5), I draw the inference from the submissions made by Mr Tirnova, his daughter and his wife during the course of the hearing (submissions that were, at times, quite emotional) that Mr Tirnova is, at least to some extent, regretful of not having complied with the orders.
This regret, however, is to be understood in the context of my earlier discussion of the unsuccessful negotiation which has taken place between Mr Tirnova and the Council seeking to have the site acquired pursuant to the Scheme.
The lodgement of the Building Information Certificate on Friday 26 June 2020 also evidences a lack of complete acceptance on Mr Tirnova's behalf of the necessity to comply in its entirety with Order (5) made by Molesworth AJ. It is to be observed that this limited conclusion is the only inference to be drawn from the making of this Building Information Certificate application.
To the extent that the above two factors weigh in Mr Tirnova's favour in my sentencing determination, I have taken them into account.

[35]

The appropriate penalty

For the purposes of concluding what should be the appropriate starting penalty for Mr Tirnova, it is necessary to undertake an instinctive synthesis of all of the relevant objective factors concerning Mr Tirnova's offending conduct and all of his relevant personal factors (Markarian v The Queen (2005) 228 CLR 357).
Mr Tirnova's contempt is, in the context of matters discussed by Molesworth AJ, one of some significance given the flood risk at the site (a risk which is turned to actuality from time to time as noted by his Honour), and where the element of the illegal construction remaining at the site effectively permits a doubling of the residential capability of the dwelling. This effectively increases the number of residents and, potentially, emergency services' rescuers exposed to the flood risk. As a consequence, Order (5) is to be seen as not only one made for the purposes of protecting the integrity of the planning system but also for lessening the risk to residents of the dwelling or members of the emergency services, risks called into play when there are significant flood events affecting the site.
Undertaking this process, I am satisfied that the appropriate starting penalty for Mr Tirnova should be $16,000.
It is to be observed that, at [100], I indicated that it was appropriate to impose a modest penalty on Mr Tirnova for his failure to satisfy completely the terms of Order (3) by 24 June 2019. As the charge which has been laid against Mr Tirnova in these proceedings is a single, rolled-up one encompassing his conduct involving non-compliance with both Orders (3) and (5), I record that, in my instinctive synthesis in determining the starting penalty set out above, I have incorporated a modest punitive element for his non-compliance with elements of Order (3) for the period of 469 days.
However, as I earlier noted at [58], Mr Tirnova acknowledged his guilt at the earliest reasonable opportunity. For this he is to be allowed the maximum discount of 25% (R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309). The appropriate post discount penalty is therefore a fine of $12,000.
However, consideration must also be given as to what extent, if any, s 6 of the Fines Act should operate to moderate this amount.

[36]

Consideration of s 6 of the Fines Act

The Fines Act, by s 6, gives a sentencing court the power to exercise discretion as to whether or not the otherwise applicable penalty should be moderated. This provision is in the following terms: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider - (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
As can be seen from the above statutory provision, s 6(a) engages my consideration of such knowledge as I have of Mr Tirnova's financial position and his ability to pay any penalty which might be imposed. However, in addition, s 6(b) enables me to have regard to a wider range of factors, provided that I am satisfied that those factors are relevant to the fixing of the amount of penalty to be imposed. I now turn to my consideration of each of these matters.
I have earlier set out such information as is in evidence that I have concerning Mr Tirnova's financial circumstances. In summary, they are that he has no significant assets other than his share of the three-way ownership of the site and that he is unemployed (and has no reasonable prospects because of his health of ceasing to be unemployed in the near future). This position is sufficient to warrant moderation of the discounted starting penalty that I have otherwise determined is appropriate.
Second, considering matters appropriate to be taken into account for the purposes of s 6(b), I am satisfied that there are a number of them. They do not need to be set out in comprehensive detail, but it is appropriate that I list them:

first, there is the general communitywide adverse economic impacts of the COVID-19 pandemic, a pandemic which would adversely impact any minor prospect as Mr Tirnova might have of returning to employment at any time in the foreseeable future;
second, although these proceedings have been brought against Mr Tirnova, I am satisfied that it is appropriate to have regard to his broader familial financial circumstances brought about by the impact of the pandemic. These adverse impacts were demonstrated by the letter from Mr Tirnova's wife's employer terminating her services as a consequence of the pandemic. Given the state of the economy as at the date I finalise this decision, it is reasonable to assume that there is no realistic prospect, in the immediately foreseeable future, that Ms Tirnova will return to her employment. It is appropriate to take this adverse familial financial consequence into account in determining the extent to which the penalty to be imposed on Mr Tirnova should otherwise be moderated;
third, the draining of his superannuation account, as shown at folios 454 and 455 of Exhibit A, is also a relevant factor in this consideration as this impacts not only on his immediate financial position but also on his longer term financial outlook; and
finally, Mr Tirnova's health circumstances, although relevant to his prospects of returning to employment, are also more generally relevant, I am satisfied, to the question of whether or not the appropriate discounted starting penalty I have earlier set out should be moderated.

On the basis of my consideration of the factors that I have set out above arising from both s 6(a) and s 6(b) of the Fines Act, I am satisfied that a very significant reduction in the penalty which would otherwise fall to be imposed should be effected.
Doing as best I can with all the information available to me (noting that counsel for the Council did not wish to cross-examine Mr Tirnova concerning any of the material I have set out above), I am satisfied that the penalty to be imposed on Mr Tirnova for his failure to give full effect to the orders of Molesworth AJ of 13 October 2017 should be $3,000.

[43]

Lack of proof of awareness of Molesworth AJ's orders

At the commencement of the hearing on 29 June 2020, I enquired of Ms Hammond where, in any of the material being put before me, did I find proof that the orders of the Court had been made known to Mr Tirnova in a fashion which provided a proper foundation for these contempt proceedings. I made this enquiry as there was no affidavit of service of those orders in any of the material contained in the Court Book.
Provision of proof of Mr Tirnova's awareness of the orders could have been effected either by evidence being adduced by the Council that Mr Tirnova had been in court at the time of Molesworth AJ making the orders or by proof of service of those orders on Mr Tirnova. At the time of commencement of the hearing, there was no proof of his awareness on either basis.
As earlier noted, Ms Hammond sought the opportunity to provide appropriate proof. After the short morning adjournment (during which a number of affidavits of service were e-mailed to my Associate), the transcript records Ms Hammond as telling me (Transcript, 29 June 2020, page 7 lines 38 to 46): HAMMOND: Your Honour will have seen an e-mail come through and also an e-mail served on the respondent, an affidavit of service of Justin Veitch sworn 9 November 2017 and council seeks leave to file in court that affidavit and to read that affidavit. I note that you've been provided three affidavits evidencing service of the field orders on each of the three respondents but obviously the council is only relying on the affidavit of Mr Veitch as it relates to Eyup Tirnova who is the first respondent in the proceedings and the only respondent in the contempt proceedings because, as your Honour noted, the orders made were directed only to him.
I do not consider that it is appropriate to burden Mr Tirnova with the costs of the hearing from its commencement on 29 June 2020 until after proof of service of the orders made by Molesworth AJ on Mr Tirnova. As a consequence, it seems to me, also doing the best I can, on the basis of the amount of time taken up by the hearing, 25% of the costs of the hearing on 29 June 2020 should be discounted from the Council's costs of the proceedings.

Liverpool City Council v Tirnova

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (47 paragraphs)

Parties

Cases Cited (16)

Cited By (1)