Liverpool Plains Shire Council v Rumble

Service of orders 7The Respondents were served with a sealed copy of the Court's orders on 15 August 2013. Particular details of the manner of service of the orders on 15 August 2013 and their re-service on 3 September 2013 are explained in the Council's affidavit evidence summarised below.

No appearance by the Respondents 8The Respondents have not appeared at any stage of these proceedings either in person or represented by an agent or a legal practitioner including today, an unsatisfactory state of affairs given that today gives rise to a possible finding of contempt of court. The Council made an application for the matter to proceed ex parte on the question of whether it can establish that a prima facie case of contempt of court orders has occurred. The determination of the seriousness of the contempt and consequential punishment is to be left for a later date. That course was adopted by the Court on proof of service of notice of today's hearing date as detailed in three affidavits of Mr Hennessy, process server, read by the Council, two dated 26 November 2013 and one dated 19 December 2013. 9While material had been filed with the Court by the Respondents this did not indicate whether they intended to appear or provide an explanation for why they would not be appearing. The Respondents' court book (exhibit E) included a medical certificate dated 16 October 2013. That is inadequate evidence to justify non-appearance on medical grounds as it is several months old and not indicative that the Second Respondent could not travel to attend court. No information about the First Respondent's situation was provided. The Court's expectation in the absence of any explanation is that the Respondents would appear today. 10At the Court's request Mr Ryder, Council officer, rang the Second Respondent on a telephone number provided on a document in the Respondents' court book (exhibit E). Mr Ryder gave oral evidence of the conversation to the effect that the Second Respondent was aware the matter was in court today, she did not intend to appear and cited health problems she said the Court was aware of and that she wished the Court to move closer to her for a hearing. None of these matters were communicated to the Court's registry in advance and no application to move the proceedings has been made. This is an unsatisfactory state of affairs given these are contempt proceedings. The Respondents' behaviour is not consistent with an understanding of the seriousness of such a charge.

Proof of contempt of court orders established 11The Council informed the Court that proof of contempt of court orders requires that any failure to comply with orders must be established beyond reasonable doubt. I considered in Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 whether a contempt of a civil enforcement matter required proof on the civil or criminal standard, which I discuss at [33]-[40]. I do not need to further consider this question as, for the reasons I give below, I consider the Council has established a failure to comply with order 1 made by Biscoe J beyond reasonable doubt. 12Evidence tendered by the Council included a letter dated 17 February 2014 from Moray & Agnew Lawyers to the Respondents, outlining the possible penalties if the charges of contempt are proved, the Council's motivation in bringing the proceedings and giving the Respondents an opportunity to contact the Council or Moray & Agnew with a plan and timetable for removal of the vehicles and vehicle components (exhibit A). Also tendered was a letter dated 3 December 2013 from Moray & Agnew Lawyers to the Respondents enclosing orders made by the Registrar including the hearing date (exhibit B), an email from the Respondents sent to the Court dated 19 February 2014 with attachments (exhibit C), and photographs taken by Mr Ryder on 17 February 2014 of the property (exhibit D). The court book prepared by the Respondents was also tendered by the Council (exhibit E). 13The affidavit of Mr Stephen Ryder, compliance officer at the Council, sworn on 18 December 2013 was read. It attached photographs taken by Mr Ryder at inspections of the property from 7 May 2013 to 20 October 2013, including aerial photographs taken on 12 December 2013. Mr Ryder states that there had appeared to have been an improvement in the number of vehicles and vehicle parts at the front of the property but there did not appear to have been any material change behind the fence line (affidavit par 19). 14In oral evidence Mr Ryder stated that he had inspected the property on 17 February 2014 and took photographs from outside the property that were tendered (exhibit D). Mr Ryder stated that comparing the photographs he took on 17 February 2014 with the aerial photographs taken by him on 12 December 2013 showed there had been little change, if any, to the number of vehicles and vehicle parts inside the fence of the property. There were more vehicles outside the fence more recently. 15The affidavit of Mr Mark Brothers, partner at Moray & Agnew Lawyers, sworn on 20 November 2013 was read. It attached letters sent to the Respondents dated 30 July 2013 containing the orders made by Biscoe J and an affidavit of the First Respondent affirmed 9 September 2013 filed in support of a Notice of Motion for an extension of time which states that the Council agreed for storage of parts and vehicles at South Street for the use of their business in Henry Street. The affidavit of Mr Brothers sworn on 17 February 2014 was also read which corrected errors in the affidavit dated 20 November 2013. 16Affidavits sworn by Mr Nathan Hennessey, commercial agent, on 19 August 2013, were read attesting to personal service of letters addressed to the Respondents from Moray & Agnew Lawyers dated 15 August 2013 and the order made by Biscoe J on 6 August 2013. Affidavits sworn by Mr Hennessey on 3 September 2013, were read attesting to personal service of the Respondents of an order filed in these proceedings on 6 August 2013. An affidavit sworn by Mr Hennessey on 11 February 2014 was read which attached the orders that were referred to as served in the affidavits dated 19 August 2013 and 3 September 2013. Annexure A to the affidavit dated 11 February 2014 is a copy of the orders made by Biscoe J sealed by the Court with the penal notice which is not sealed by the Court. Annexure B is a copy of the orders made by Biscoe J sealed by the Court with the penal notice which is sealed by the Court. 17The Council has complied with the necessary procedural steps required in Pt 55 in pursuing a charge of contempt such as service of the original orders and the Notice of Motion and Statement of Charge. It has established beyond reasonable doubt that there has been a failure to comply with order 1 made by Biscoe J which failure is ongoing in light of Mr Ryder's evidence. 18A bundle of documents was filed by the Respondents called court book for 19 February 2014 (exhibit E), which contained their replies, a document called statement of objection to charge, a medical certificate dated 16 October 2013 advising of medical treatment for the Second Respondent, District Court judgments in trespass proceedings against the Council in 2009 which have no part to play in this matter, and two separate copies of the sealed orders of the Court. The principal matter to note from this material is an admission by the Respondents in the objection to the statement of charge at paragraph 9 that the reason for storing vehicles at the South Street property is because of limited storage space at their business premises in Henry Street Quirindi. This further supports the Council's evidence in this matter. 19Also received by email from the Respondents dated 19 February 2014 was a document addressed to Pepper J (exhibit C) which purported to argue that these proceedings lack a constitutional foundation. Those issues were considered and dealt with by Biscoe J at [7]-[9] of his judgment. I agree with his reasons and there is no basis for revisiting this matter given that final orders were made and formally entered last year in any event. 20Another document received by email on 19 February 2014 from the Respondents was headed Reply for 19 February 2014 (exhibit C) which overlaps in large part with the documents call Reply in exhibit E. This referred to irregularities with the orders issued by the Court with those served by the Council without any detail and I do not understand the nature of the complaint raised. Some of the contested history surrounding the Respondents' property is identified but is irrelevant to the matter before me today. The Respondents appear to suggest that they are not subject to any planning laws in that they assert the right to own chattels and live freely on their property. This issue was also considered by Biscoe J at [9] and determined in the Council's favour. I agree with his determination and in any event the orders he made are final having been made and formally entered by the Court. Issues otherwise considered by Biscoe J were also raised but once again have no bearing on whether his Honour's order 1 has been complied with. 21The contempt of a court order has been proved which is not merely technical. I will not make any finding of whether the contempt was wilful or, more seriously, contumacious as I will provide one final opportunity for the Respondents to come before the Court to explain their actions including their attempts to purge their contempt. I strongly suggest that they take up such an opportunity. If they wish to make application to the Court about how a further hearing should be conducted this can be done by approaching the Court registry as soon as possible.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2014