Liverpool Plains Shire Council v Rumble

EX TEMPORE Judgment 1The matter before me arises from a Notice of Motion with a statement of charge for contempt filed by Liverpool Plains Shire Council (the Council) on 21 November 2013. The statement of charge sets out the basis on which the Court is pursuing contempt of court proceedings against Mr and Mrs Rumble. I will not read it out, I believe the parties are very familiar with it. 2The parties are also very familiar with the history of the matter. It is usefully set out in the chronology attached to the Council's counsel's written submissions filed today headed, "Applicant's Chronology After May 2013" and I will adopt that chronology for the purposes of my judgment. 3This contempt arises from orders made by Biscoe J on 25 July 2013, which orders required work (the removal of vehicles and car parts inter alia) to be done by Mr and Mrs Rumble at the property at South Street, Quirindi within 28 days of the orders. They had to be complied with by 30 August 2013. On failure to comply with the orders, these contempt proceedings were commenced by the Council. In Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13 (Rumble (No 2)) delivered on 19 February 2014 I held that proof of contempt of court orders was established by the Council. I incorporate par [11]-[21] of that judgment here as these usefully set out the background to how this matter came before the Court in more detail than I have just summarised based on the Council's chronology. 4The matter appears before me today for the purpose of sentencing Mr and Mrs Rumble. In terms of the evidence that I have heard today, I have before me the affidavit of the Council officer, Mr Steven Ryder sworn 23 May 2014. In the affidavit Mr Ryder provides photographic evidence of the premises at South Street Quirindi the subject of these proceedings. It is clear from those photographs that there was a continuing presence of vehicles on the property in breach of the Court's orders at the time the photographs were taken. 5The affidavit of Mr Steven Ryder sworn 2 May 2014 provides in more detail further material, including photographs, which demonstrates the continuing presence of vehicles in breach of the Court's orders on the premises as at the date of that affidavit. 6Mr and Mrs Rumble also provided to the Court their outline of submissions. Included at pages 10, 11 and 12 are photographs which show car body parts, cars and tyres on the property. There is no doubt that the contempt is continuing at the premises. 7Mr and Mrs Rumble also gave oral evidence. I should briefly summarise that. 8Mrs Rumble's evidence is that she is on a disability support pension of $550 per fortnight. She does not have any savings. She does not live at South Street Quirindi. She does jointly own the property at Henry Street Quirindi, where a car sales and spare parts business is conducted by Mr Rumble. She believes that she is able to get the property cleared within one month and urges the Court to give her that opportunity as a means of purging her contempt. Mrs Rumble was cross-examined about her determination to do so by the Council's counsel and appears adamant that she will be able to encourage her family to remove all the relevant car vehicles and car parts in that time. 9Mrs Rumble was cross-examined about what vehicles remain on the property. My understanding from her evidence is that there is a total of five vehicles owned by people living at South Street which are for personal use, with possibly the addition of a truck or trailer and that otherwise everything else has to go, to speak broadly. She submitted that despite her health problems, she is able to make arrangements for the clearing of the property. 10Mr Rumble's evidence is that he has removed or caused to be removed 40 vehicles from the property so far. There have been difficulties in recent times with getting the property cleared due to bad weather. Six loads of items and cars have been removed in the last few weeks. He is also adamant that he will be able, with the assistance of family members, to remove the balance of what is on the property in the next month. 11Mr Rumble said that he did not realise how serious being in contempt of court orders was and has apologised to the Court. Both he and Mrs Rumble believed that because of what they perceived to be changes in the order and the judgment made last year by Biscoe J, they did not realise they had to comply with it. 12I asked Mr Rumble about his income. He advises me he can generate some income through sales at the car yard. He has not been able to give me any figures of what his income is. He says that he has not earned much in the last month or so because he has been directed to clearing out the property at South Street and anticipates that will continue into next month. 13I asked him about the level of involvement of Mrs Rumble in the car sales business in Henry Street, given her evidence that she has not been involved in the business since 2012. He essentially agreed with that evidence. Mrs Rumble has not been receiving income from the car yard in that time. Mrs Rumble's name is still being maintained on the dealer's licence which does allow her to be actively involved again in the business if that is required. 14The biggest problem posed to the removal of the cars and the storage of the parts has been where to put them and Mr and Mrs Rumble still do not have a place for that. They accept that they have to get the vehicles off and I accept their evidence that it is fully their intention to remove the vehicles within a month. 15Turning to the matters that I have to consider when sentencing for contempt, I found the Council's submissions handed up today very useful in providing guidance to the court on matters that I need to have regard to. I can adopt part of those submissions as they usefully identify the importance, for example, of the need to comply with court orders. In relation to the seriousness of contempt of court, the Council's written submissions at par 12 refer to a decision of Pepper J in Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210. Her Honour more than adequately sets out the relevant principles governing the seriousness of contempt proceedings and why they are so important in the legal system at [88] and [89]. Contempt of court orders are serious, which reflects how important it is for the maintenance of the fabric of the justice system that breaches of court orders be taken seriously. 16Her Honour referred to a decision by Kirby J in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, repeated at par 13 of the Council's written submissions, a useful statement of the importance of upholding for the administration of courts the orders that courts make. 17The next matter I must consider is whether this is a serious contempt in the sense of whether it is either wilful or contumacious. It is more than technical. Contumacious means that it is a deliberate flouting of the Court's authority, a serious finding. 18The Council has urged on me that the contempt is serious. Certainly the history speaks to an extended failure by Mr and Mrs Rumble to comply with the terms of the orders. Having heard from them today in oral evidence I will give them the benefit of the doubt and I find that this contempt is not contumacious but it is wilful, meaning not accidental. It is a serious contempt but it is not in the most serious category of contempt, which is an important finding for sentencing purposes as a number of the cases to which the Council referred make clear. Fines imposed where there has been a finding of contumacious contempt have been very substantial, in the vicinity of $50,000 or more. It follows from my finding of wilful contempt I will not be imposing fines in the region of $50,000. 19In terms of other sentencing factors I should take into account in this matter, there is a useful judgment of Dunford J in the District Court in Wood v Staunton (No 5) (1996) 86 A Crim R 183, often referred to in cases for contempt as it identifies matters that the court can take into account when sentencing. As well as the seriousness of the contempt the Court must consider whether the contemnor was aware of the consequences of its conduct; the actual consequences of the contempt; the reason or motive for the contempt; whether the contemnor had received or sought to receive a benefit or gain from the contempt; whether there has been expression of genuine contrition or apology by the contemnor; the character and antecedents of the contemnor; personal circumstances of the contemnor; and the need for deterrence, both general and specific and the need for denunciation of the contemptuous conduct. Also relevant are any matters in mitigation under the Criminal Procedure Act 1986. I have to say there are not many matters in mitigation. I note that neither Respondent has prior convictions. 20An important consideration is the capacity to pay any fine imposed, if the imposition of a fine is a suitable penalty as I consider it is here. Under s 6 of the Fines Act 1996 I will be taking into account the ability of the respective Respondents to pay a fine. 21I consider Mr and Mrs Rumble were probably not as aware as they should have been of the consequences of failing to comply with a court order. The consequences of the contempt are that the Court has had to have this matter before it over many months, and the Council would have expended considerable amounts on legal costs and officer time on the matter as a result. It has also meant that there has been an ongoing failure to comply with the planning laws of New South Wales, which I think is a damage to the Quirindi community generally and is an important reason why contempt proceedings were necessary in this matter. 22In terms of the reason for the contempt, it appears agreed by Mr and Mrs Rumble that the storage of the vehicles and the car parts was for the purposes of supporting the car sales business at Henry Street. There appears also some suggestion by Mr Rumble that he has a collection of cars for personal use. In one sense it is true to say that the contempt was partly motivated by financial need, another factor to consider in terms of the seriousness of the contempt and I take that into account. 23In terms of contrition I accept, despite I have to say a history of not very contrite behaviour leading up to today, the expressions of contrition and remorse from both Mr and Mrs Rumble in the witness box before me today. In terms of Mr and Mrs Rumble's character I certainly have nothing before me to suggest that they are other than of good character and I take that into account. 24In terms of their personal circumstances, I have recounted their oral evidence before me of their current financial situation and I take that into account in sentencing. As always in contempt matters it is important to consider general deterrence and denunciation of the contempt and I will therefore be imposing a fine. Further, taking into account specific deterrence and the need for the Rumbles to be truly aware they have to comply with this order, I will also impose a periodic fine, the imposition of which I will delay to enable the Defendants to purge their contempt. 25In terms of mitigating factors, the main one that I will be taking into account is their capacity to pay fines and certainly the limited ability, particularly of Mrs Rumble, to pay a fine. 26In sentencing it is important that the Court, where possible, be consistent in its sentencing and the Council's submissions did refer to a number of cases at par 37 of the written submissions. As with all of these matters, sentencing must reflect the particular circumstances before me. I note Burwood Council v Ruan [2008] NSWLEC 167 identifies a range of penalties imposed by the Court from $7,500 up to 50,000, the latter in cases of wilful contempt. I was also referred to Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210, Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72 and Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64. All provide some, but not exact, guidance on what it is most appropriate to impose as a penalty in this matter. I will come to the matter of costs shortly. 27One other matter that I am taking into account is that while I think Mrs Rumble should be penalised, I think it should be to a lesser extent than Mr Rumble, given that she has had no active ongoing role in the Henry Street business since 2012. The evidence shows that she has been actively engaged in dealing with the Court and the Court order and also seeking to comply with the Court order. 28Very briefly I should refer to Mr and Mrs Rumble's outline of submissions filed today. A lot of the matters referred to have been dealt with in the course of the hearing this morning. In particular I note that the matters raised by them at par 4, 5, 6 and 7 relate to the validity of the Court's order. For the reasons already given by me this morning, it is quite clear that the order is completely orthodox and there is no procedural basis why the orders are not enforceable. In further oral submissions further reference was made to a failure of the penal notice to be properly endorsed by the Court at the time of service on the Rumbles, but I consider that is also a baseless criticism. For completeness I note an affidavit of Mr Mark James Brothers, solicitor, sworn 20 November 2013 has been read again before me to answer the matter of the validity of the penal notice. I consider that that was dealt with appropriately and correctly by the Council within the Land and Environment Court Rules 2007. I also referred to this issue in Rumble (No 2) at [17] when I found that all the procedural requirements had been met. There is no technical or procedural issue arising from the material before me. 29A number of the other matters in the written submissions have not been supported by Mrs Rumble's and Mr Rumble's oral evidence. Concerning the challenge to the jurisdiction of the Court, a matter raised at pages 9 and 10 of the submissions, I understand that before me now Mr and Mrs Rumble accept entirely that the Court has jurisdiction to determine this matter and that the Council and the Court have the ability to enforce the planning laws of New South Wales. 30Further additional matters referred to relate to the efforts made by Mr and Mrs Rumble to clear vehicles from the property. Frankly more could have been done by now and I am very encouraged to hear that they do fully intend to comply with the order in the next 28 days. 31The Council generally in these matters is awarded costs in its favour. The Council seeks an order for indemnity costs, which means that all of their costs, which I suspect are substantial, are sought by them. It appropriate that I order indemnity costs, given the protracted nature of these proceedings and I will make that order also. The Council's costs are therefore to be paid by Mr and Mrs Rumble on an indemnity basis.