Mid-Coast Council v Gazecki and Anor

Category: Procedural rulings

Parties: Mid-Coast Council (Applicant)
John Janek Christopher Gazecki (First Respondent)
Natalie Marie Decorte (Second Respondent)

Representation: Counsel:
A Jucha (Applicant)
P McDonald (First and Second Respondents)
Solicitors:
Local Government Legal (Applicant)
Clear Lawyers (First and Second Respondents)

File Number(s): 2024/00061055

Publication restriction: Nil

JUDGMENT

Introduction and outcome

1. By way of summons filed 16 February 2024, Mid-Coast Council (‘Council’) commenced Class 4 civil enforcement proceedings seeking declaratory and consequential relief against John Janek Christopher Gazecki and Natalie Marie Decorte (‘respondents’) relating to the carrying out of development comprising the construction of a new and/or enlarged dam (‘Dam 1’) on land at 1079 Upper Myall Road, Warranulla (‘land’) in 2022 and 2023.

2. Council sought declaratory relief, first, that the respondents had carried out works without development consent in contravention of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’); and second, that Ms Decorte (‘second respondent’) had breached the EPA Act by failing to comply with a development control order issued by Council on 15 December 2023 (‘DCO’) which contained a Restore Works Order (‘RWO’) relating to Dam 1.

3. Presently before the Court is a notice of motion filed by Council on 31 January 2025 and amended on 5 February 2025 (‘amended motion’), which seeks, first, leave to amend two notices of motion filed by Council on 19 September 2024 (‘contempt motions’) which seek orders that each respondent be punished for contempt of this Court for breaching their written undertakings given to this Court on 15 April 2024 to complete certain “Interim Works” in relation to Dam 1 (‘Undertaking’); and second, leave to rely upon certain affidavit evidence at the hearing of the contempt motions.

4. The respondents oppose the relief sought by Council and the hearing of the amended motion proceeded on 4 February, 5 March and 8 April 2025.

5. For the reasons that follow, I find that Council is entitled to leave to amend each of the contempt motions and to rely upon the identified affidavits, and that costs of the amended motion be reserved.

Evidence

6. Council read three affidavits of its solicitor, Mark Andrew Cottom, two affirmed 31 January 2025 and one affirmed 5 February 2025; the affidavit of Charlotte Rose Petrie, a solicitor employed by Council’s solicitor, affirmed 5 February 2025; and the affidavit of Frank Hoare, a licensed commercial agent, sworn 8 October 2024. A transcript of the hearing on 13, 16 and 19 August 2024 before Pain J of a notice of motion filed by the respondents in these proceedings became Exhibit A.

Background

7. The respondents occupy land owned by the second respondent and have carried out works comprising the construction of three dams on the land. On 15 December 2023, Council issued the DCO to the second respondent along with restore works orders in respect of the three dams. The present proceedings concern Dam 1 (one of those dams) and the related RWO.

8. The DCO for Dam 1 requires the second respondent to submit to Council a landform restoration plan prepared by a suitably qualified person which must provide for the demolition of the dam and reinstatement of the landform that existed within the disturbance area prior to the dam’s excavation, and includes a provision that the plan “must consider and not inhibit the future development of the registered 10 metre easement (right of carriage) which has been impacted by the unlawful earthworks”.

9. On 11 January 2024, the second respondent commenced Class 1 (appeal) proceedings in respect of the DCO, seeking orders that the Court revoke the RWO. On 12 February 2024, the second respondent filed a notice of motion in those Class 1 proceedings for a stay of the operation of the DCO. That motion was heard by Pain J on 21 March and 15 April 2024.

10. As noted earlier, on 16 February 2024, Council commenced these Class 4 civil enforcement proceedings against the respondents, seeking declarations that, first, the respondents have breached the EPA Act by carrying out development, namely the construction of Dam 1 in 2022 and 2023, without having obtained development consent to do so; and second, the second respondent has breached the EPA Act by failing to comply with the DCO.

11. On 15 April 2024, the respondents gave the Undertaking in the Class 4 proceedings for certain “Interim Works” to be undertaken in respect of Dam 1 and the Court made orders by consent in the Class 1 appeal staying the DCO on the condition that the second respondent comply with the Undertaking.

12. Pars 2, 3 and 4 of the Undertaking relevantly provide:

“…

2. Pursuant to section 9.46 of the Environmental Planning and Assessment Act 1979, within 21 days from the date of these Orders, the respondents are to prepare and submit to the Applicant for its review and approval, specifications in relation to the following interim works (Interim Works):

a. Alteration to the weir for Dam 1 to allow for the temporary drainage of dam waters, to an acceptable level, to mitigate any unacceptable risk to the Applicant’s road infrastructure on the adjacent Upper Myall Road, Warranulla;

b. Installation of a new drainage pipe or pipes generally equivalent to the original (diameter/ hydraulic capacity, structural capacity, nature and extent) for the purposes of conveying water from the first order stream which crosses the registered easement adjacent to Dam 1; and

c. Reinstatement of the easement track adjacent to Dam 1 to its original approximate natural and state relative to levels, compaction and stability. For this purpose:

i. A geotechnical engineering report for the proposed rectification works to the easement is to be prepared on behalf of the respondents for the review and approval of the Applicant;

ii. The report is to be prepared by a suitably qualified NER (or equivalent) registered geotechnical engineer;

iii. The report is to identify the existing soil profile through core hole testing for not less than five (5) locations within the disturbed surface area in the easement; and

iv. Such report is to include recommendations as to the scope of, the engineering design specification and work method for returning the ground to its predevelopment condition.

3. The respondents are to carry out the Interim Works within 28 days of receiving the Applicant’s approval pursuant to Order 2 above. In doing so, the reinstatement of the easement track is to be undertaken in accordance with the work method approved by the Applicant.

4. Within 7 days of completing the Interim Works, the respondents are to provide to the Applicant a final report from the engineer referred to in Order 2(c)(ii) above certifying that the works have been carried out in accordance with the recommendations of the report described in Order 2(c).

…”

13. In summary, par 2 of the Undertaking required the respondents to prepare and submit to Council specifications for the Interim Works, being works relating to excavation and earthworks, including, alteration to the weir for Dam 1; reinstatement of the easement track adjacent to Dam 1; and installation of new drainage pipe(s). Par 3 of the Undertaking required the respondents to carry out the Interim Works listed in par 2 within 28 days of receiving Council’s approval of the specifications. Par 4 of the Undertaking required a geotechnical engineer to certify that the works for the reinstatement of the easement track “have been carried out in accordance with the recommendations” of the report provided by the geotechnical engineer.

14. On 4 July 2024, Council approved the specifications in relation to the Interim Works prescribed by the Undertaking, which required the Interim Works to be completed by 1 August 2024. The respondents failed to carry out the Interim Works within 28 days of Council’s approval.

15. The respondents applied to the Court for relief in relation to the Undertaking by way of notice of motion filed on 3 August 2024 (and amended on 16 August 2024), seeking an order that they be released from the Undertaking and proposing a new undertaking. After a hearing on 13, 16 and 19 August 2024, Pain J dismissed their application on 20 August 2024 (Mid-Coast Council v Gazecki [2024] NSWLEC 88) and noted:

“[22] Accepting that the Respondents had some difficulties getting the work done by their contractor in July 2024 it does not follow that I will make the orders sought by them in light of all the circumstances. Significantly the Undertaking was accepted by the Council as part of the management of the Class 4 and Class 1 proceedings. As a result of the Undertaking the Council agreed to consent orders in the Class 1 proceeding[s] including that the development control order in relation to Dam 1 could be stayed. The Council reasonably seeks to have the interim works completed as soon as possible.

[23] The overall history of the proceedings also needs to be considered. Both the Class 1 and Class 4 proceedings have a lengthy procedural history before the Court. I was informed that there have been some eight mentions to date. The Undertaking made on 15 April 2024 for interim works to be done was not able to be actioned until 4 July 2024 when approval was granted by the Council as provided by par 2 of the Undertaking.”

16. On 19 September 2024, Council commenced the contempt proceedings against each of the respondents alleging non-compliance with the Undertaking by filing and serving the respective contempt motion, “Statement of Charge”, and affidavits in support of each contempt charge on each respondent.

17. On 1 November 2024, the contempt motions were set down for hearing on 4 February 2025 (with 5 February 2025 being assigned as a reserve day for the hearing). Consequent upon the Court giving directions for the filing and service of evidence, Council filed the present motion on 31 January 2025 (and amended on 5 February 2025), seeking relief including:

“…

2 Leave be granted to [Council] to amend prayer 1 in its [contempt motions] by replacing the words ‘subscribed to this Notice of Motion’ with ‘filed in [the respective proceeding numbers] on 19 September 2024’.

…

3 Leave be granted to [Council] to use the [six] affidavits listed in [paragraphs 3(a) to (f)] pursuant to rule 35.1 of the Uniform Civil Procedure Rules 2005 (UCPR), or alternatively, to rely on [six reaffirmed] affidavits listed in [paragraphs 3(g) to (l)].

…

4 The Court dispense with the requirements of rules 31.19 and 31.21 of the UCPR in relation to any expert evidence in the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025, and/or grant leave to [Council] to rely on such evidence.

5 Leave be granted to [Council] to rely on the … affidavits [listed in paragraph 5] at the hearing of the [contempt motions].

…

6 In the alternative to the leave sought in [paragraphs 5(a) to (c)], an order pursuant to rule 23.8(1) of the UCPR [for Council] to inspect [the land] and leave [be granted for Council] to file, serve and rely on affidavits arising from that inspection at the hearing of the [contempt motions].

…”

18. Simply stated, the relief sought by Council in the amended motion seeks to address, first, a perceived error of wording in each contempt motion; second, concerns regarding the use of electronic signatures in affidavits sought to be relied upon by Council; third, the contended failure of one deponent (Jason Unger) to comply with the expert witness code of conduct; and fourth, the use of further “updating” evidence.

Submissions

19. The parties provided detailed written and oral submissions. Although Council bears an onus in respect of the amended motion, it is convenient to outline the respondents’ position before considering Council’s position.

Respondents’ position

20. The respondents maintain that Council’s amended motion should be dismissed for the following reasons:

21. There are four matters which would point against the Court granting the “widespread” relief sought by Council, being: first, the contempt motions purport to allege a breach of an undertaking to the Court such that the prosecution of such a claim, including whether it should be permitted to be brought, and its ongoing case management, is fundamentally a matter for the Court; second, the observation of Barrett J in McDonnell v Novello [2006] NSWSC 1186 (‘Novello’) at [35], that anyone pursuing a contempt motion is to do so with “precise attention to all matters going to due process”; third, Council’s acceptance that it is subject to model litigant obligations, which require it to do more than merely act in accordance with the law and the rules of the Court, and to act with the highest professional standards; and fourth, the relief sought in the amended motion would not facilitate the just, quick and cheap resolution of the real issues in the proceedings.

22. Any dispute between parties about whether there has been a breach of an undertaking to a court should initially be referred to the court by “promptly relisting the matter” rather than commencing contempt proceedings: Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091 (‘Novelly’) at [71(3)]. As this did not occur, the Court has not been afforded a proper opportunity to “control” the contempt proceedings until the time of the hearing on 4 February 2025, being some six months (and many hundreds of pages of proposed evidence) after they were commenced by Council. This represents a failure by Council to acknowledge that compliance with undertakings is not a matter purely for Council itself: Novelly at [70].

23. Council’s conduct fails to reflect the common-sense proposition that “not every dispute should be litigated” (Novelly at [1]), and Council has instead pressed ahead and expanded the leave sought by filing the amended motion which would cause the Court, in determining the amended motion, to scrutinise each of the purpose, scope, prospects and potential range of outcomes of the contempt proceedings.

24. In relation to par 2 of the amended motion, while the respondents accept that the contempt motions and the Statements of Charge were filed at the same time by Council on 19 September 2024, the Statement of Charge accompanying each contempt motion is “deficient” in its particularisation and thus was invalidly drafted, such that the leave sought in par 2 should be refused. Noting that, first, the acts or omissions that are said to constitute the contempt must be specified; and second, the particulars must be within the four corners of the charge, Council has not properly particularised the act or omission simply by reference to each respondent’s failure to alter the weir for Dam 1 in accordance with the drawing in the Statements of Charge.

25. In relation to par 3 of the amended motion, Council inappropriately used digital signatures in each of the affidavits listed in pars 3(a) to (f), and s 14G of the Electronic Transactions Act 2000 (NSW) (‘ET Act’) cannot be invoked to circumvent the requirement for “pen and ink” signatures. As such, the affidavits listed in pars 3(a) to (f) were not properly signed, and attempting to “fix them up” by relying on the reaffirmed affidavits as listed in pars 3(g) to (l) one day before the hearing is too late and causes prejudice to the respondents.

26. In relation to par 4 of the amended motion, the requirements in rr 31.19 and 31.21 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) are “very clear” and require a party to promptly seek directions from the Court regarding expert evidence. In the present circumstances, r 31.19 was “entirely circumvented” by Council by the filing and service of the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025 (which contain evidence in relation to survey and grade levels) without seeking directions. The following factors weigh against granting the leave sought:

(a) First, Mr Unger is not an “independent expert” as he is an employee of Council; (b) Second, Mr Unger has not made a declaration in his evidence regarding the Expert Witness Code of Conduct (‘Code’) under Sch 7, cl 3(1)(i) of the UCPR (which is an important safeguard required by the Code); (c) Third, because there had not been a “usual” letter of instructions to an expert, the discussions that took place between various Council officers and Mr Unger regarding instructions given to him by Council would necessarily lead to more questions at trial (regarding Council’s chain of command and what discussions were had), which is likely to take up a considerable amount of court time and cost the respondents a considerable amount of money; and (d) Fourth, there has been no explanation as to why Mr Unger’s evidence was filed in circumstances where, first, Mr Unger is not a “registered” surveyor; and second, Mr Unger has deposed that a further survey by a registered surveyor could be undertaken if required.

7. In relation to par 5 of the amended motion, the affidavits listed in pars 5(a) to (c) are not evidence “in reply” as there is no suggestion in those affidavits that they “reply” to any of the respondents’ material. The test for evidence in reply is that there has to be a new matter raised in the evidence, unlike evidence in chief. In the present case, those affidavits are merely evidence in chief in the form of updating evidence filed 31 January 2025 which did not afford the respondents an adequate opportunity to reply before the notice of motion hearing on 4 February 2025. Moreover, the affidavits listed in pars 5(d) to (f) relate “largely” to historical events and could have been filed in September 2024. It is too late to put on further evidence in chief almost six months after the September 2024 site inspection and only one working day before a final hearing. Rather, Council should have sought an order at the directions hearing on 1 November 2024 to file and serve those further affidavits.
8. In relation to par 6 of the amended motion, the leave that Council has sought (in the alternative) to rely on further evidence from a site inspection under r 23.8(1) of the UCPR “encourages the never ending roundabout of evidence-in-chief” in these proceedings, and there must be a line drawn under Council’s evidence gathering.
9. The wording of the Undertaking, which has given rise to the contempt motions and the amended motion itself, raises a construction argument based on its incorrect reliance upon s 9.46 of the EPA Act in circumstances where s 9.46 only relates to a power of the Court to make orders and, as such, the parties could not exercise the power under s 9.46 for present purposes. The contempt motions must, therefore, fail because of ambiguity, uncertainty or unenforceability or, at least, a reasonable doubt about the Undertaking. Further, there is an “alternative” construction available for the Undertaking in relation to the easement track grade, being that the specifications are found only in the geotechnical report and not in the plans, and the contempt motions will fail if Council cannot establish the contrary construction beyond reasonable doubt.

Council’s position

21. Council submits that the orders sought in its amended motion should be granted because:

22. In relation to par 2 of the amended motion, leave should be granted to “correct errors” in each of the contempt motions, which state that the Statement of Charge is “subscribed to” rather than “filed with” each contempt motion in circumstances where this error does not affect the fact that the requirements of r 7 of Pt 55 of the Supreme Court Rules 1970 (NSW) (‘SC Rules’) have been met because the contempt motions were filed with the Statements of Charge on 19 September 2024 at the Court’s Registry. There is no prejudice to the respondents as by the time the contempt charges came before the Court, the respondents were not in any doubt as to the breaches alleged. In respect of the respondents’ reliance on Novello, that case is not analogous to the present circumstances as the statement of charge in Novello was neither “subscribed to” nor “filed with” the notice of motion, but was filed separately.

23. In relation to par 3 of the amended motion, Council accepts that there are potential issues regarding the form of the six “original” affidavits listed in pars 3(a) to (f) as each deponent signed the affidavit by applying digital signatures which “might not meet” the requirement in s 14G(2)(a) of the ET Act. However, the leave sought should be granted for the following reasons:

(a) The inclusion of the words “Affidavit affirmed and witnessed by Audio Visual Link in accordance with s 14G of the Electronic Transactions Act 2000”, in each of the original affidavits, is a proper form of endorsement that meets the requirements of s 14G of the ET Act; (b) The Court may grant leave for those affidavits to be used under r 35.1 of the UCPR, and any issues about their affirmation are minor and do not change the character of those documents as affidavits: Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 at [93]; (c) There would be no prejudice to the respondents if leave is granted as all of the deponents are available to affirm their affidavits before the Court; and (d) In any event, Council had each deponent affirm a “new” affidavit on 3 February 2025 (as listed in pars 3(g) to (l)) which is identical (in substance) to the original affidavits. Again, there would be no prejudice to the respondents in granting leave, given that the respondents were served with the original affidavits in September and October 2024 and the new affidavits on 5 February 2025.

3. In relation to par 4 of the amended motion, the Court should either dispense with the requirements of rr 31.19 and 31.21 of the UCPR in relation to any “survey” expert evidence in the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025, or grant leave to rely on such evidence. This is because despite the Court not giving leave for expert evidence, Council has filed and served the survey evidence of Mr Unger which primarily addresses the grade of the land (and the easement track), which is a significant issue as the approved plans prescribe an easement track grade of 3% while Mr Unger’s evidence is that the grade is between 3% and 30%. Moreover, as Council’s proposed reliance on such survey evidence has been known to the respondents (and the Court) since September 2024, there is no prejudice to the respondents.
4. In relation to par 5 of the amended motion, leave should be granted for the following reasons:

(a) The affidavits listed in pars 5(a) to (c) provide up to date evidence about the state of the works undertaken on the land. Given that Mr Gazecki (‘first respondent’) arranged for Council’s officer, Philip Marshall, to carry out “further works” on 3 October 2024 and Mr Cottom, Council’s solicitor, advised the respondents on 24 January 2025, that “[t]he contempt charged is of a continuing nature”, the affidavits provide evidence about site conditions as of 24 January 2025 (including evidence that some aspects of the contempt had been “mitigated” while other aspects were “continuing”); (b) The affidavits listed in pars 5(d) to (f) are admissible evidence because they are relevant, would not cause any prejudice and relate to matters known to the respondents, as they include, transcripts of appearances before the Court which are relevant to the status; construction and application of the Undertaking; details of the filing of the contempt motions and the Statements of Charge; and evidence of personal service of the respective contempt motion and Statement of Charge on the first respondent.

5. In relation to par 6 of the amended motion, if the Court does not allow Council to rely on the affidavits listed in pars 5(a) to (c), Council seeks an order for a further site inspection under r 23.8(1) of the UCPR and leave to rely on affidavits that may arise from that inspection, given Council’s contention that further works have been undertaken on 3 October 2024 and the allegation of continuing contempt.
6. In relation to the respondents’ submission that Council should have relisted this case before pursuing contempt proceedings (per Novelly), Council contends that Kunc J’s comments in Novelly should not be applied as general principle, but as a principle that only has application in trivial disputes. The present proceedings involve serious matters including the impact of the respondents’ conduct on Council’s infrastructure and a third party’s easement. Council points to the fact that in August 2024, the respondents applied to this Court (Pain J) to be released from the Undertaking and to have a new undertaking accepted (Mid-Coast Council v Gazecki [2024] NSWLEC 88) as satisfying any requirements that might apply per Novelly. Despite this, Council’s primary position is that Novelly can be distinguished from the present case and the respondents’ submission would effectively impose a “preliminary step” contrary to Pt 55 of the SC Rules.
7. In relation to the respondents’ submission that the relief sought should not be granted because the contempt charges are “doomed to fail” on the construction (or the existence) of the Undertaking by reason of the reference to s 9.46 of the EPA Act in par 2 of the Undertaking, Council contends that par 2 presents no difficulty because the conduct required in that paragraph has already been undertaken and is not the subject of the contempt charges. To revisit the operation of par 2 would be to “look behind” Pain J’s decisions in Mid-Coast Council v Gazecki [2024] NSWLEC 88 and Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103, and to bring into question a matter which has been considered and resolved.
8. In relation to the respondents’ submission that the particulars of the Statements of Charge are deficient because they lack precision and because the approved plans incorporate other documents by reference, Council contends that the correct question is whether the particulars provide sufficient information for the alleged contemnors to defend themselves: Chiltern District Council v Keane [1985] 2 All ER 118 at 119; [1985] 1 WLR 619. In this case, all that is required of the particulars is to identify what work has not been carried out in accordance with the approved plans, and the particulars of the Statements of Charge meet that requirement. The fact that the plans incorporate other documents by reference was a decision of the respondents in preparing the plans which does not give rise to any deficiency in the particulars.
9. In relation to the respondents’ submission that Mr Unger cannot be an “independent” expert because he is Council’s employee, Council contends that it is common practice for Council employees to give expert evidence in court. To the extent the respondents also suggest that any expert should have been “pre-qualified” at an earlier directions hearing, the skills, qualifications and experience of experts can be tested in cross-examination. While Mr Unger’s evidence does not include a declaration in relation to the Code under Sch 7, cl 3(1)(i) of the UCPR, this declaration could be given in the witness box as evidence with the Court’s leave.
10. In relation to the respondents’ submission that allowing Council to rely on updating evidence about the condition of the land would not afford the respondents an opportunity to reply to that evidence, Council contends that this concern could be “easily healed” by granting the respondents leave to file and serve evidence in response to any updating evidence. More fundamentally, the allegation is one of continuing contempt, and the site inspection in January 2025 and the subsequent evidence occurred as a consequence of the respondents notifying Council that they had undertaken further works on the land.

Consideration

22. I find that Council is entitled to the relief it seeks in pars 2, 3, 4 and 5 of the amended motion. My reasons may be shortly stated.

23. The following facts, which are relatively uncontentious, are noted as the background to my consideration of the discrete issues before the Court, and I express no view in relation to the prospects of success in any further hearing between the parties.

24. Simply stated, the contempt motions allege failure to comply with the Undertaking, which Council contends required certain works to be carried out to ameliorate certain impacts of Dam 1 on an adjacent road and a neighbour’s registered easement. Council contends that the respondents were, and continue to be, in contempt by failing to complete the Interim Works in accordance with the specifications which were provided by the respondents and thereafter approved by Council.

25. Council accepts that par 2 of the Undertaking has been performed. Par 3 of the Undertaking required the respondents to undertake the Interim Works within 28 days of Council’s approval of the specifications (which was 1 August 2024), which did not occur. Although Council accepts that some works have been carried out, Council maintains the works do not comply with the specifications. This represents one of the key issues in the contempt proceedings upon which I again express no view.

Par 2 of the amended motion

26. I find that the evidence establishes that the contempt motions filed 19 September 2024 were in fact “filed with” the respective Statements of Charge dated 19 September 2024 at the Court’s Registry. I consider that this constitutes compliance with r 7 of Pt 55 of the SC Rules, which requires a statement of charge to be subscribed to, or filed with, a notice of motion for contempt. To the extent that there was wording in each contempt motion stating that the Statement of Charge is “subscribed to” rather than “filed with” the contempt motion, it does not affect the fact that the requirements in r 7 of Pt 55 of the SC Rules have been met. Rule 7 of Pt 55 requires the following:

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion …

27. Although the respondents point to certain comments of Barrett J in Novello at [35]; Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231 (‘Chandrasekaran’) at [8]; and Westpac Banking Corporation v Bruce Patrick Burke [2011] NSWSC 549 (‘Westpac’) at [11], I do not consider that these authorities assist in the present circumstances. In Chandrasekaran, the notice of motion was not accompanied by a statement of charge and there was no evidence of service of the motion, contrary to the SC Rules. In Westpac, there was a failure to comply with the SC Rules due to the plaintiff’s failure to serve a notice that the defendant would be liable to imprisonment, and there was an absence of personal service.

28. I accept Council’s submission that while there has been a minor error in the form of each contempt motion, there has been no failure in relation to r 7 of Pt 55 of the SC Rules; and that further, there is no material prejudice to the respondents arising from the error in form. It could not be said that the respondents were in doubt as to what breaches were alleged and this is clear from the transcript when the matter was before the Court for directions on 1 November 2024. It is my view that as no prejudice has been caused to the respondents, and while I remain conscious that an allegation of contempt is serious and not to be made lightly, and a party pursuing such an allegation should do so with precise attention to all matters going to due process, I find that it is just and reasonable to allow the amendments as sought in par 2 of the amended motion.

Par 3 of the amended motion

29. I accept that there is some concern in relation to the manner in which the relevant affidavits contain the proper endorsement required by s 14G of the ET Act. Mr Cottom, Council’s solicitor, deposes that each of the affidavits (listed in pars 3(a) to (f)) of Adam James Fardell affirmed 19 September and 31 October 2024; Nicholas Kellner affirmed 19 September 2024; Jason Unger affirmed 19 September 2024; and Mark Andrew Cottom affirmed 19 September and 31 October 2024, was affirmed before an Australian legal practitioner by audio visual link and satisfied the identification requirements set out in s 34 of the Oaths Act 1900 (NSW). Despite this, each deponent signed their affidavit by applying a digital signature, and I accept there is a concern about the application of a digital signature in relation to the requirement in s 14G(2)(a) of the ET Act, primarily because the witness must observe the person signing the document “in real time”.

30. As noted above, the respondents also contend that the affidavits dated 19 September 2024 and 31 October 2024 listed in pars 3(a) to (f) of the amended motion do not bear the proper endorsement required under s 14G of the ET Act. Although not determinative in my findings, I am of the view that the endorsement on the affidavits which contains the wording “Affidavit affirmed and witnessed by Audio Visual Link in accordance with s 14G of the Electronic Transactions Act 2000” is an acceptable form of endorsement that meets the requirements of s 14G in circumstances where the ET Act does not set out a prescribed form of endorsement.

31. Despite this, I find that, apart from the lateness of Council’s response, any issues regarding the affirmation of the affidavits listed above are minor and that the Court has power under r 35.1 of the UCPR to grant leave for those affidavits to be relied upon despite any irregularity in form. Further, I find that there would be little prejudice to the respondents in circumstances where it is clear that Council has indicated that it will have (or will facilitate) all deponents affirm their affidavits before the Court and for cross-examination. However, I also accept that Council has now caused each deponent to affirm a new affidavit on 3 February 2025 (listed in pars 3(g) to (l) of the amended motion) which is almost identical (in substance) to the corresponding affidavit (listed in pars 3(a) to (f)). I consider that this alleviates any prejudice to the respondents, which would result in the Court granting leave to Council to rely upon the affidavits listed in pars 3(g) to (l).

Par 4 of the amended motion

32. Although Council has filed and served “survey” expert evidence (being the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025) without addressing the requirements of rr 31.19 and 31.21 of the UCPR, and while I consider that there may be a question of nicety as to whether “survey” evidence is, by its nature, expert evidence (on balance, I consider that it is), having read both affidavits, I do not consider there is material prejudice to the respondents in relation to Council’s reliance upon this evidence, the nature of which has been known to the respondents since September 2024 and in circumstances where the respondents may elect to adduce responsive evidence. In any event, I do not consider that the failure of Mr Unger to provide a declaration under cl 3(1)(i) of the Code in Sch 7 of the UCPR is determinative in circumstances where the declaration may be given in the witness box with the Court’s leave, should that remain a matter of concern. I express no view as to the veracity of this evidence.

33. To the extent that the respondents submit that Mr Unger cannot be an independent expert because he is an employee of Council, I accept Council’s contention that it is not uncommon for a council employee with particular qualifications to give evidence in this Court. Whether Mr Unger (or any witness) has the appropriate qualifications, skills and experience and/or is independent, can be canvassed before the trial judge and tested in cross-examination.

Par 5 of the amended motion

34. In relation to the affidavits listed in pars 5(a) to (c), while I accept that there is a difference between evidence “in reply” and “updating” evidence and accept the respondents’ position that these affidavits cannot be in “reply” to any evidence of the respondents, and subject to my concern as to the lateness of these affidavits (being only a few days before the hearing of the contempt motions), I accept the submission of Council noted at [21(4)(a)] above, and find that the evidence does address matters of importance (in particular, that further works have been undertaken on the land) and, given the circumstances of the delay now caused by the amended motion, the respondents may respond to this evidence.

35. In relation to par 5(d), Council seeks leave to rely upon the affidavit of Mark Andrew Cottom affirmed 5 February 2025 as it annexes transcripts of hearings before the Court which Council submits are relevant to the status, construction and application of the Undertaking. Conversely, the respondents contend that there is uncertainty both in relation to the status of the Undertaking and its construction because there are “multiple” constructions open and they cannot be convicted of contempt in relation to an undertaking which has various possible constructions (as per Rafailidis v Camden Council [2015] NSWCA 185 at [47], [61]). While it will be a matter for the Court in any final hearing to determine relevance, I consider it appropriate that leave be given to Council to rely upon the affidavit as it is apparently responsive to a position advanced by the respondents, and I consider that any potential prejudice is able to be met.

36. In relation to par 5(e), Council seeks leave to rely on the affidavit of Charlotte Rose Petrie affirmed 5 February 2025 which sets out the details of the filing at the Court’s Registry of various documents including the contempt motions and the Statements of Charge (and the four accompanying affidavits) on 19 September 2024. Ms Petrie was cross-examined at the hearing of the amended motion on 5 March 2024. Her evidence is relevant to the contempt motions, and I see no prejudice to the respondents in granting leave to rely upon this evidence.

37. In relation to par 5(f), Council seeks leave to rely on the affidavit of Frank Hoare sworn 8 October 2024 which relates to the service of the contempt motion and the Statement of Charge on the first respondent, and again, I see no prejudice to the respondents in granting leave to rely on this evidence.

Other matters

38. In addition to their concerns addressed above, the respondents made submissions relating to the extent of the evidence now sought to be relied upon by Council and the potential further costs, delay and prejudice to be caused to the respondents, who submit that the contempt motions were improperly brought in lieu of seeking interlocutory relief in these Class 4 proceedings. The respondents also remind the Court that, first, both of the Class 1 appeals are listed for hearing together before this Court in the near future, being one appeal against a development application to undertake related works on the land (which may otherwise address matters of concern relating to Dam 1) filed by the second respondent (proceedings 2024/00351558) and the appeal noted at [9] above in respect of the DCO (proceedings 2024/00012848); and second, the resolution of those Class 1 appeals may resolve the contempt proceedings.

39. To the extent that the respondents contend otherwise, I do not consider that Council was bound to foreshadow the possibility of contempt proceedings and I accept that the respondents have been aware (from matters raised in the earlier proceedings before Pain J, leading to Mid-Coast Council v Gazecki [2024] NSWLEC 88) that contempt was being alleged. Neither Pt 55 of the SC Rules nor my reading of the comments of Kunc J in Novelly imposes an obligation on Council to foreshadow the possibility of contempt proceedings to the respondents.

40. Further, I consider that any argument in relation to the construction (or as submitted by the respondents, the existence) of the Undertaking is a matter that is not determinative in these interlocutory proceedings. For clarity, in relation to the respondents’ contention that the construction issue was, or should have been, determined in the earlier proceedings before Pain J, it is a matter that should be left to the hearing of the contempt motions.

41. Concern was also raised by the respondents in relation to the adequacy of the particulars in each of the Statements of Charge. I find that the level of particularity required is determined by whether the particulars provide sufficient information to enable the alleged contemnor to defend themselves. Council maintains that there has been non-compliance with the Undertaking and the plans as prepared by (or on behalf of) the respondents and approved by Council, relate to works which have not been carried out in accordance with those plans. As such, I consider that the particulars in the Statements of Charge sufficiently specify the allegations.

42. Although the respondents have further contended that the works prescribed by the Undertaking would require development consent, I do not consider this is a matter that is relevant in my determination of the leave presently sought in the amended motion.

Conclusion

43. For the reasons above, first, I find that Council is entitled to leave in relation to each of the matters set out in par 2 of the amended motion and that leave is to be granted to Council to rely upon the affidavits affirmed on 3 February 2025 and filed on 5 February 2025 as listed in pars 3(g) to (l); second, I dispense with the requirements of rr 31.19 and 31.21 of the UCPR in relation to the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025; and third, I grant leave to Council to rely upon the affidavits listed in pars 5(a) to (f).

44. I have found for Council, although I maintain a concern that the amended motion was brought on particularly late and no doubt affected the hearing of the contempt motions which had been set down for hearing on 4 and 5 February 2025. As such, Council has enjoyed some success because I have found that due to the loss of the hearing days, the respondents will have time to adduce the evidence. In these circumstances, and given the background of this matter, I will direct the parties to confer and prepare appropriate directions for the conduct and the hearing of the contempt motions and the substantive Class 4 proceedings.

Orders

45. The orders of the Court are:

46. Leave is granted to Mid-Coast Council to amend prayer 1 in its two notices of motion filed on 19 September 2024 as follows:

(a) In the case of the first respondent, by replacing the words “subscribed to this Notice of Motion” with “filed in proceedings 2024/00061055-005 on 19 September 2024”; and (b) In the case of the second respondent, by replacing the words “subscribed to this Notice of Motion” with “filed in proceedings 2024/00061055-004 on 19 September 2024”.

2. Leave is granted to Mid-Coast Council to rely upon the following affidavits:

(a) Two affidavits of Adam James Fardell dated 3 February 2025; (b) Affidavit of Nicholas Kellner dated 3 February 2025; (c) Affidavit of Jason Unger dated 3 February 2025; and (d) Two affidavits of Mark Andrew Cottom dated 3 February 2025;

3. The Court dispenses with the requirements of rr 31.19 and 31.21 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to the affidavits of Jason Unger dated 19 September 2024 and 31 January 2025.
4. Leave is granted to Mid-Coast Council to rely upon the following affidavits at the hearing of the two notices of motion filed on 19 September 2024:

(a) Affidavit of Adam James Fardell dated 30 January 2025; (b) Affidavit of Jason Unger dated 31 January 2025; (c) Two affidavits of Mark Andrew Cottom dated 31 January 2025 (filed at 2.46pm) and 5 February 2025; (d) Affidavit of Charlotte Rose Petrie dated 5 February 2025; and (e) Affidavit of Frank Hoare dated 8 October 2024 (filed in proceedings 2024/00061055-005).

5. The parties are directed to confer in relation to further directions for preparation for the hearing of the two notices of motion filed 19 September 2024 and the hearing of the substantive Class 4 proceedings.
6. The two notices of motion filed 19 September 2024 and these Class 4 proceedings are listed for directions on 8 August 2025.
7. Costs of the notice of motion filed 31 January 2025 and amended on 5 February 2025 are reserved.

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