Mosman Municipal Council v Kelly

Land and Environment Court (NSW)|2010-02-16|Before: Biscoe J, Mr J, Lloyd J, Jagot J

CITATION : Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: Mosman Municipal Council PARTIES : RESPONDENT: David Kelly

KEY ISSUES: CONTEMPT :- Disobedience to court order to demolish building - coercive purpose of contempt proceeding.

Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46, 161 CLR 98 Burwood Council v Ruan [2008] NSWLEC 167 Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797, 153 LGERA 126 Liverpool City Council v Palerma Pty Ltd (No 2) [2009] NSWLEC 45 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Mosman Municipal Council v Kelly [2007] NSWLEC 90 CASES CITED: Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969, 53 NSWLR 527 Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 Sutherland Shire Council v Sawyer [2000] NSWLEC 162, 109 LGERA 409 Wood v Staunton (No 5) (1996) 86 A Crim R 183

APPLICANT: Mr J Lazarus SOLICITORS: Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr M McMortrie, agent SOLICITORS: n/a

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: On 31 July 2008 Lloyd J ordered the respondent, Mr David Kelly, to demolish a garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman, within a period of four months from 31 July 2008: Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229. That was a variation of a similar order made by Jagot J on 19 February 2007 which required compliance by no later than 20 April 2007: Mosman Municipal Council v Kelly [2007] NSWLEC 90. 2 The applicant, Mosman Municipal Council, charged the respondent with contempt for disobeying Lloyd J's order. On 19 June 2009 I found the respondent guilty of contempt as charged and gave directions for a sentencing hearing: Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91. 3 The sentencing hearing was adjourned twice, on the respondent's application, on the ground of his ill health. He is now before the Court for sentencing.

4 The respondent has still not complied with the order nor even commenced demolition. 5 At the sentencing hearing, the only evidence tendered by the respondent concerned his ill health and that he is not resident in New South Wales. Notwithstanding the latter evidence, I note that he has been for some time, and is continuing to be, treated by medical practitioners in the Sydney area. SENTENCING PRINCIPLES 6 The following ten factors relevant to sentencing for contempt identified by the Court of Appeal in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 were endorsed by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [129] and applied in this Court in Burwood Council v Ruan [2008] NSWLEC 167, Liverpool City Council v Palerma Pty Ltd (No 2) [2009] NSWLEC 45 at [7] and Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [92]:

the seriousness of the contempt proved; 2) whether the contemnor was aware of the consequences to himself or herself of what he or she did; 3) the actual consequences of the contempt on the relevant trial or inquiry; 4) whether the contempt was committed in the context of serious crime; 5) the reason for the contempt; 6) whether the contemnor has received any benefit by indicating an intention to give evidence; 7) whether there has been any apology or public expression of contrition; 8) the character and antecedents of the contemnor; 9) general and personal deterrence; and 10) denunciation of the contempt. 7 Factors 1, 2, 5, 7, 8, 9 and 10 in that list are relevant in the present case. 8 The Crimes (Sentencing Procedure) Act 1999 applies when sentencing for contempt: Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969, 53 NSWLR 527 at [44]; Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [93]. The purposes for which a court may impose a sentence on an offender are listed in s 3A of that Act and include the following which are relevant in the present case: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences …

(e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender…" 9 The purpose of the exercise of the power of the Court to punish for contempt of a court order was considered in Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797, 153 LGERA 126 by Lloyd J: "[20] The underlying purpose of the exercise of the power of the court to punish for contempt is to protect the effective administration of justice by demonstrating that the court's order will be enforced: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107. In Mudginberri (at 107) the High Court referred to Borrie and Lowe's Law of Contempt (2nd ed, 1983), p 3: 'If a court lacks the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.'

[21] The function of punishment for contempt serves two purposes: the enforcement of the process and order of the court and punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose punishment also serves the purpose of deterring both the contemnor and others who might be so minded from flouting the authority of the court.

[22] Non-compliance with an order or a judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must therefore show that obedience to a court's order is important and should reflect its gravity.

[23] Finally on the question of the nature and purpose of a penalty for contempt it is worth noting the judgment of Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [149]: 'Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, 'serious and lasting damage to the fabric of the law may result'. [ Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115]. Obviously, the culpability of the contemnor is relevant to the order which must be made [ Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741]. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner." CONSIDERATION 10 The respondent was represented at the sentencing hearing by an agent whose submissions, as I understood them, were to the following effect:

a) a conditional development consent granted by the council to the respondent in 1999 contained a condition that plans had to be submitted amending the roof of the structure. He attempted to lodge such plans with the council which refused to receive them. The council thereby acted unreasonably and, as a result, is responsible for everything that has followed. He went ahead and constructed the garage without any amendment to the roof in protest against the council's failure to receive his amended plans, in the hope this would induce the council to accept his plans before the roof went on. That was the only reasonable course open to him. I am unable to accept the assertion that he attempted to lodge plans with the council which refused to accept them because there is no evidence of this before the Court. Even if I were to assume that it happened and that his conduct was his way of protesting, I do not think that his conduct was reasonable as a mitigating consideration in this sentencing hearing; b) the respondent has heart disease as well as a cognitive disability. The latter may explain his decision to engage in a form of civil disobedience by erecting the garage as a protest against the council's failure to accept the plans he put forward, and this was the only course reasonably open to him. I note that there is evidence before the Court that he has heart disease but no evidence of cognitive disability. I am unable to say whether either has anything to do with his "protest". I cannot accept that erection of a garage for which there was no development consent was a reasonable course for him to take; c) a reason that he has refused to demolish the garage in compliance with the order is that he is awaiting finality in these proceedings to have Lloyd J's decision overturned on appeal. As far as I am aware, no appeal or application for leave to appeal against that order has been lodged; d) he has not had a hearing on his defence to the council's points of claim. This may be related to the fact that Jagot J made her 2007 order ex parte, in the circumstances explained in her Honour's judgment. It seems to me that in the years that this proceeding has been on foot, the respondent has had reasonable opportunity to put whatever he wished before the Court; e) the respondent has not been well and this bears on his capacity to comply with the order, which he does not desire to breach wilfully or flagrantly. I note the evidence indicates that since July 2009 he has been receiving medical attention for a heart condition, has had surgery and is unwell. However, there is no evidence that his ill-health has affected his capacity to comply with the order by arranging for a contractor to demolish the garage. Nor does it appear to relate at all to his non-compliance with the order prior to July 2009; f) the respondent is aged 65 or 66, does not have ready funds to immediately comply with the order and has a pensioner's card. In the absence of evidence or further particulars as to the respondent's financial means, I am unable to accept that his financial means explains his disobedience to the demolition order. If he wishes to appeal and seek a stay order from the Court of Appeal pending determination of the appeal, it is open to him to take that course if he is not now time barred from doing so. The grounds of any such appeal have not been explained. He also says he wishes to contest whether development consent was granted, its conditions and the lawfulness of the councils alleged refusal to accept his plans. In my view, he could have done this years ago; I do not regard this as significant for present purposes; g) he needs final determination of this contempt proceeding before he can appeal my decision and would like to pursue all legal avenues before having to comply with the demolition order. I do not think this is a mitigating factor on sentencing; h) he has had difficulty in obtaining transcripts of hearings due to his financial circumstances. There is no evidence of this but, assuming it to be so, without further explanation I do not see how this is significant on sentencing; i) as to the amount of the fine suggested by the council (see below), someone on an old age pension should be treated with more respect and the council should be dragged across the coals for its behaviour. While his financial means are relevant to a fine (as discussed below), on the evidence before the Court no criticism of the council's behaviour is justified; j) the respondent does not wish to offend the Court. 11 In my opinion, the contempt is serious. The construction of the garage and the disobedience to demolition orders were a deliberate flouting of the planning regime. The contempt is ongoing. The council does not press for a finding that the contempt was contumacious. The proceedings were commenced in 2006; Jagot J's demolition order was made in February 2007; Lloyd J's demolition order was made in July 2008; the respondent was held to have breached the latter and to be in contempt in June 2009, it is now February 2010 and the respondent still has neither complied with the order nor even commenced demolition. 12 The erection of the garage breached the Environmental Planning and Assessment Act 1979. The demolition orders were made under s 124(2)(b). Because orders were made under s 124, the respondent became immune from prosecution for an offence against the Act: s 127(7). In my earlier judgment at [10], I noted Jagot J's observations in her judgment that the council is concerned that the garage is inconsistent with the council's planning controls. 13 The respondent was aware of the consequences of his conduct. The actual consequence of the contempt is that an unauthorised structure remains in place.

14 Until the sentencing hearing, no reason was put forward as to why he did not comply with the demolition orders. According to submissions by the applicant's agent, his failure to comply with Lloyd J's demolition order may be attributable to his health and means. I accept that he is in ill health but, as discussed above, there is no evidence to otherwise support the submission. 15 The respondent has not expressed contrition. He appears to be of good character.

16 There is a strong need for specific deterrence. The contempt has been ongoing for a lengthy period and is continuing. Such conduct cannot be tolerated. General deterrence and denunciation of the conduct concerned is a significant consideration in the imposition of a penalty for contempt. Courts must respond firmly and be seen to be responding firmly to any deliberate defiance of their orders lest the authority of their determinations be undermined and the justice system imperilled. 17 A relevant consideration is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question. However, each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion. In the present case the council submits that the present case is so different from others that there is no relevant general pattern of sentencing. I am prepared to proceed on that basis. 18 The council proposes, and I accept, that the appropriate penalty is a fine. In considering the amount of the fine, I am unable to give weight to the bald assertion by the applicant's agent, unaccompanied by evidence or particulars, as to the applicant's financial means: s 6 Fines Act 1996.

19 As is typical in contempt cases such as this, the council's primary purpose in bringing the contempt proceeding is to coerce the respondent into complying with the demolition order. The council suggests that the appropriate range is $10,000 to $50,000 plus a monthly or weekly fine so long as the contempt continues. However, the council proposes that in order to maximise the coercive effect, the fixed fine should be at the lower end of that range and the periodic fine should be of the order of $5,000 per month, suspended for a period, until the order is complied with. 20 I am prepared to proceed along these lines in order to maximise the coercive effect of the penalty. Otherwise, in my view, the contempt would have warranted a fine in excess of $50,000 as well as a monthly fine so long as the contempt continued. However, I am sensitive to the particular circumstances of the case, the coercive object of the contempt proceeding, and the need to mould the penalty so as to maximise its coercive effect. The relativity of the initial fine and the continuing periodic fine should be such that the former is not so large as to blunt the coercive effect of the latter

21 The coercive purpose of a periodic fine so long as a contempt of a court order continues was accepted by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46, 161 CLR 98 at 114 where it was held there will often be periodic fines for continuing breaches of orders, suspended for a period to permit purging of the contempt. Periodic fines have been imposed in this Court in, for example, Sutherland Shire Council v Sawyer [2000] NSWLEC 162, 109 LGERA 409 and Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147.

22 In the special circumstances of the case, I consider it appropriate to make the fine substantially less than would otherwise be the case. I propose to impose (a) a fixed fine of $20,000 and (b) a periodic fine of $5,000 per calendar month so long as the order is not complied with, suspended until 1 July 2010. There will be liberty to apply in respect of the periodic fine. ORDERS 23 The orders of the Court are as follows:

The respondent is convicted of the charge of contempt of Court as particularised in the statement of charge. 2. The respondent is fined $20,000. 3. The respondent is also fined $5,000 per calendar month so long as the demolition order of the Court made on 31 July 2008 continues not to be complied with. 4. Order 3 is suspended until 1 July 2010. 5. The respondent is ordered to pay the applicant's costs of the applicant's contempt proceeding. 6. Liberty to apply in relation to orders 3 and 4.

16/04/2010 - incorrect sequence number of judgment. - Paragraph(s) Cover sheet - change (No 4) to (No 6)

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