Malass v Strathfield Municipal Council

Malass Again Refuses to Provide Access to the Property

1. According to the affidavit of Adrian Guy affirmed 6 September 2022 (Guy is the solicitor for the Council) in support of the Council's notices of motion, on 1 August 2022, when the pleas of guilty were entered by Malass to the contempt charges before Robson J, the issue of access to the property for the purpose of inspection in order to finalise the Council's evidence for the sentence hearing was raised before his Honour. Formal orders for access to the property were sought by the Council. The Court indicated, however, that it was not inclined to make such orders in circumstances where Malass had pleaded guilty and where her solicitor, Ihab Jamal, had advised the Court that access would be arranged. The Court therefore made consequential timetabling orders that included an order that the Council file and serve any further evidence by 23 August 2022.
2. As the Guy affidavit indicates, from 3 to 23 August 2022, the Council made repeated efforts to organise access to the property for the purpose of an inspection. These requests were either ignored or reply to them was delayed by a purported change in Malass's legal representation (from Jamal to Sean Kim of Kim & Associates). The change is 'purported' because at the time of the hearing of these applications Jamal remained Malass's solicitor on the record.
3. It should be noted that an inspection had been arranged for 18 August 2022, through Jamal, but this did not eventuate when the change in Malass's legal representation occurred.
4. An inspection was finally arranged for 25 August 2022. However, when the Council officers arrived at the property to commence the inspection it was delayed because the husband of Malass, Rabi Malass, was otherwise occupied on a telephone call (Malass was not present). In the result, insufficient time was permitted to carry out the inspection (less than 20 minutes). In addition, the Council officers were not granted access to all areas of the property, in particular, access was denied to the bedrooms on the upper floor. A full inspection of the property was therefore not able to be carried out and the Council was unable to finalise its evidence for the purpose of the sentence hearing.
5. Accordingly, as Guy deposes in his affidavit, "the photographic evidence is incomplete as it does not enable Strathfield Municipal Council to compare the state of the Property at the time of the contempt charge to the state of the Property immediately prior to the hearing on sentence". This evidence is necessary because the Council alleges that the contempt is ongoing and that further unauthorised works have occurred since the charges were laid.
6. Evidence of the state of the property at the time that the contempt charges were filed is found in the affidavit of Bradley Pope, sworn 15 December 2021. Pope is a Council officer who has inspected the property previously, including on 25 August 2022.
7. On 26 August 2022 Guy received an email apparently indicating that Malass was now without legal representation. The Council therefore wrote to Malass directly on 5 September 2022 requesting further access to the property for the purpose of inspection. No response was received.
8. Accordingly, on 6 September 2022 the Council approached the Court for the matter to be listed before the Duty Judge. The Council was informed that it had to proceed by way of notice of motion together with accompanying affidavit evidence. Short service was granted to serve any application, together with all relevant material, on Malass and any application was set down for hearing before the Duty Judge on 8 September 2022. The slight delay was to accommodate Malass's status as a potential litigant in person.

Hearing of the Notices of Motion Before the Duty Judge

1. Jamal and Malass were present before the Court for the hearing of the motions. Jamal informed the Court that he no longer acted for Malass and therefore he sought leave to appear as her agent.
2. The Court directed Jamal to file a notice of ceasing to act by 9.00 am the following day if in fact he was no longer acting for her and proceeded to grant him leave to appear as agent for Malass (dispensing with the need for written authorisation under r 7.7(2) of the Land and Environment Court Rules 1979 ("the LEC Rules"), Jamal having told the Court that he had informed Malass of the matters contained in r 7.7(1) of the LEC Rules).
3. Jamal sought an adjournment of the hearing of the notices of motion until 12 September 2022, in order to permit Malass to provide him with instructions and to permit him to prepare for the hearing of the motions. This was opposed by the Council on the basis that the sentence hearing was imminent and that it needed to finalise its evidence, that the substance of the motions was not complex, that it had been attempting to gain access to the property for the purpose of conducting a full inspection since 3 August 2022 and this had not transpired, and that any problems with legal representation were not the fault of the Council but appeared, absent any further explanation, to be the result of the conduct of Malass.
4. The Court declined the adjournment application sought by Malass largely for reasons mirroring the submissions made to it by the Council. But it deferred the hearing of the motions until 3.00 pm later that day to permit Jamal to confer with Malass. It should be noted that the Court offered to adjourn the hearing of the motions until 10.00 am on 9 September 2022, but this was rejected by both parties because neither legal representative was available at that time.
5. At 3.00 pm, when the matter resumed, Malass relied upon an affidavit of Rabi Malass, sworn earlier that day. In that affidavit, Rabi Malass deposed to his version of events in respect of the inspection that occurred on 25 August 2022. In short, he disputed the evidence of Guy that only approximately 20 minutes had been afforded to the Council to inspect of the property. He also noted that Pope, one of the Council officers present during the inspection, had been wearing a body-worn video device ("BWD"). In addition, he stated that the Council officers had taken "hundreds" of photographs during the inspection.
6. In his affidavit, Rabi Malass proffered the opinion that there was sufficient material contained in the photographs taken by the Council and in the BWD video to enable the Council to finalise its evidence, especially because "about 5 inspections" of the property had taken place. A further inspection was therefore not warranted.
7. Leave was granted to the Council to adduce further oral evidence from Guy in response to the Rabi Malass's affidavit. Guy stated the following: 1. that the then solicitor acting for Malass, Kim, was told by Pope that the BWD was being worn for safety reasons only and that an undertaking had been given by the Council to Malass that the video would not be used in evidence as a result of privacy concerns expressed by, or on behalf, of Malass. Guy was, however, uncertain if this had been conveyed directly to Rabi Malass during the inspection. He merely believed that Kim had done so; 2. that when he arrived at the property Rabi Malass was on a telephone call and as a consequence, the inspection did not start until approximately 12.14 pm and was permitted to proceed only until approximately 12.32 pm, whereupon Rabi Malass told him and the Council officers that they had to leave. In total approximately 17 minutes of inspection was permitted; and 3. no photography of the bedrooms on the upper floor of the property was permitted by Rabi Malass during the inspection and only a very brief inspection of those areas was allowed by him.
8. Guy was cross-examined by Jamal. Although much of his oral evidence was challenged, it remained largely intact. During cross-examination Guy confirmed that: 1. Kim was told that the BWD video would not be used in evidence; 2. Rabi Malass was on the telephone when he arrived and that the inspection did not commence until 12.14 pm. No more than 19 minutes was afforded to the Council to carry out the inspection. The inspection was therefore rushed, incomplete and not carried out properly; and 3. that the bedrooms on the upper floor were not permitted to be adequately (or at all) inspected and that no photographs were permitted to be taken of these areas.
9. Significantly, the evidence deposed to by Guy in his affidavit to the effect that he had informed Kim by email on 23 August 2022 that 30 minutes was insufficient to carry out the inspection, was not challenged.
10. The hearing concluded at approximately 6.45 pm, whereupon after a brief adjournment the Court made orders in accordance with the notices of motion, albeit with some amendment, together with consequential timetabling orders for the filing and serving of evidence and submissions in order to preserve the sentence hearing date. Very brief reasons were provided at that juncture. The Court informed the parties that it would deliver full reasons today given the imminence of the sentence hearing. These are those reasons.

An Inspection of the Property Should be Ordered

1. Rule 23.8 of the Uniform Civil Procedure Rules 2005 ("UCPR") empowers the Court to order inspection relevantly as follows: 23.8 Inspection of property (1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following - (a) the inspection of any property … (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property. … (4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995. … (6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.
2. I am satisfied that at this stage of the proceedings sufficient relief is not available under s 169 of the Evidence Act 1995.
3. In opposing the motions, Malass did not take issue with the relevance of the further evidence sought to be obtained by the Council, rather, based on the evidence of Rabi Malass, she submitted that a further inspection of the property was not necessary because the Council already had sufficient material for it to finalise its evidence and that, in effect, a further inspection would be oppressive. In particular, material was available from earlier inspections by the Council of the property, which included the "hundreds" of photographs and the BWD video taken on 25 August 2022. In addition to this evidence, the undisputed fact that the house was occupied, including the bedrooms on the upper floor, was sufficient for the Council to demonstrate, as a matter of inference, its allegation that the contempt was ongoing and that works had continued to be undertaken in contravention of the relevant Court orders the subject of the contempt charges.
4. I find that the evidence demonstrated the following: 1. the Council was only given at most 19 minutes in which to inspect the property on 25 August 2022, which was not, as it had earlier indicated to Malass on 23 August 2022, sufficient; 2. the Council was not permitted to properly (or at all) inspect the bedrooms on the upper floor; 3. an undertaking had been given, which was communicated to Malass, that the video footage from the BWD would not be used in evidence. The Council did not know if the video was in fact available for viewing. Even if it was, as it indicated to the Court, still shots from the video would, in any event, be required to be obtained for the purpose of comparing the state of the property at the time that the contempt charges were laid versus its present state; and 4. given that the onus falls on the Council to prove any allegation of ongoing contempt as a factor in aggravation beyond reasonable doubt, it is necessary to obtain photographic evidence of the present state of the property, including the upper floor bedrooms. This task has not been able to be completed by the Council due to the conduct of Malass (as detailed above).
5. There is no doubt that in order to finalise its evidence for the purpose of the sentence hearing, the Council requires further access to the property to inspect it in order to ascertain the state of the works, if any, that have been carried out by Malass since the contempt charges were laid. The Council seeks to assert that the contempt has not been purged, on the contrary, it alleges that the contempt has continued and that further unlawful development has taken place. It is entitled to make such an allegation, and therefore, it is entitled to obtain evidence to prove it. To reiterate, this can only be done by comparing the state of the property at the time the charges were laid with its current state. This necessitates a fulsome inspection of the property by it. In my opinion, the inspection that was carried out by the Council on 25 August 2022 was inadequate because of the conduct by Malass, through the actions of Rabi Malass, which hindered the Council in its performance of the inspection by reason of the truncation of time and the limited access afforded to the Council to all areas of the property.
6. Moreover, I accept that the BWD video cannot be used for the reasons that the Council gives. I note that no application has been made by Malass to obtain this material.
7. I further note that when asked, Jamal was not able to point to any prejudice that would be suffered by Malass if the order for access and inspection was made. This may be contrasted with the position of the Council who are at risk of not being able to adduce evidence to prove to the necessary standard that the contempt is ongoing. No photographic evidence, for example, was taken of the upstairs bedrooms, which were only cursorily inspected on 25 August 2022.
8. In other words, I agree that the Council's evidence is incomplete and that it should be given the opportunity of completing it by filing the further evidence that it seeks to rely upon.
9. Given the immediacy of the hearing, it is imperative that the Council's evidence be finalised as soon as possible, otherwise the hearing date will be in jeopardy. The delay in filing and serving its evidence is in no way the fault of the Council but rests with Malass, who has refused to engage cooperatively with the Council in permitting proper access to, and inspection of, the property.
10. The orders sought for access and inspection of all areas of property by the Council should therefore be made.

Malass to Pay the Council's Costs of the Motions

1. The Council sought an order that Malass pay the costs of each motion. Such order should be made.
2. In relation to the Class 4 proceedings, costs typically follow the event and there is no reason why the Council ought not be compensated for the costs that it has incurred in attempting to gain access to the property, attempts that, in my opinion, have been resisted unreasonably by the conduct of Malass, as the evidence demonstrates.
3. In relation to the Class 1 proceedings, the presumptive rule is that each party ought bear their own costs of the proceedings unless it is fair and reasonable to order otherwise (see r 3.7(2) of the LEC Rules). The presumptive rule may be displaced where the circumstance demand it (see the non-exhaustive factors contained in r 3.7(3) of the LEC Rules).
4. I find that the conduct of Malass: 1. in refusing to engage with the Council in its attempts to arrange an inspection of the property, especially in circumstances where Malass, through her solicitor, told the Court on 1 August 2022 that such access and inspection would be organised; and 2. in not ensuring on 25 August 2022 that sufficient time was afforded to the Council to permit it to properly inspect the property and in not ensuring that the Council was able to inspect all areas of the property, as it was entitled to do (exacerbated by the fact that the Council told Malass through her solicitor on 23 August 2022 that 30 minutes would be insufficient to conduct the inspection. As it transpired, it was afforded only 19 minutes, which on any view, was inadequate), 3. amounts to unreasonable conduct that warrants a costs order being made against her. Put another way, it is fair and reasonable that Malass pay the Council's costs of the Class 1 motion.

Orders

1. The orders made on 8 September 2022 in respect of the notices of motion were therefore as follows: 1. pursuant to r 23.8(1)(a) of the UCPR the Council is granted access to the property for the purpose of conducting an inspection of all areas of that property. Such inspection includes the taking of photographs of all areas of the property, including all bedrooms; 2. such inspection is to take place on 12 September 2022 between 12.00 and 1.00 pm for a total duration of 60 minutes, with time commencing to run upon the entry onto the property by any Council officer. Present at the inspection on behalf of the Council will be Bradley Pope, Terrence Wong and Adrian Guy; 3. the Council is to file and serve all further evidence upon which it seeks to rely at the sentence hearing, together with its written submissions, by no later than 12.00 pm on 15 September 2022; 4. all evidence relied upon by Malass at the sentence hearing is to be filed and served, together with her written submissions, by 5.00 pm 17 September 2022; 5. the Council is to file and serve any written submissions in reply (maximum 10 pages) by 10.00 am 19 September 2022; 6. Malass is to pay the Council's costs of both motions; and 7. liberty to restore.

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: 12 September 2022