Palerang Council v Banfield

Ms Banfield's Application for a Stay is Refused 28Meanwhile, by notice of motion filed 26 March 2012, Ms Banfield applied for an order that the contempt proceedings be stayed for six months. 29In support of her application, Ms Banfield led evidence in relation to her financial and medical circumstances, contained in two affidavits sworn 19 and 27 March, the latter of which was also relied upon for this sentence hearing. 30The application was heard before Lloyd AJ, who found (Palerang Council v Banfield [2012] NSWLEC 85 at [3]) that, as at the date of the hearing on 24 April 2012, order 2 of the orders had not been complied with, and that Ms Banfield remained in occupation of the shed on the property. 31Ms Banfield's evidence of her financial situation was summarised by Lloyd AJ as follows (at [9]): ...In short, her evidence is that she and her husband are currently running a business of a bookshop in Bungendore and are in the process of putting that business up for sale, which she expects will return them some $80,000. Secondly, she is seeking early access to her superannuation, which is said to be in the amount of some $20,000. Upon the happening of those events, she will then be able to erect the approved shed and temporary dwelling. She says that it is a kit shed which can be readily erected and has already purchased the sewage system and rainwater tank for that building. 32Ms Banfield also relied upon a medical certificate, signed by Dr Xenie Federoff, in support of a claim that she was suffering from depression and an anxiety disorder, which had a bearing on her ability to comply with the orders. 33Lloyd AJ gave little weight to this evidence, stating that "the untested opinion of a medical practitioner in a three-line certificate is not sufficient of itself to secure a stay of proceedings." His Honour applied the decision in Jeray v Blue Mountains City Council [2011] NSWLEC 228. 34His Honour was additionally troubled by the fact that Ms Banfield had not given any explanation as to why she had not taken steps to improve her financial position, namely, by putting the business up for sale and seeking early access to her superannuation, at an earlier stage in the proceedings (at [13]). 35For these reasons, his Honour declined to grant a stay of the hearing of the contempt proceedings. 36On 2 May 2012, Ms Banfield wrote to the council stating that she would be seeking, by way of development application, approval for temporary occupancy of the shed. If this was not obtained she would "cease occupying the premises and obtain alternative accommodation". 37The council responded the next day, stating that any application would be approved on its merits but that, in circumstances where the Court had already made orders for the removal of the shed, "it would be unwise to assume that any further development application in relation to the shed will necessarily be approved". 38On 11 May 2012 Ms Banfield emailed the council stating that she had prepared a development application and that it would be submitted before the hearing on 29 May 2012. In her email she asked "would your client be agreeable to just varying the date by which the shed is required to be certified, to allow me to comply?" 39On 15 May 2012 the council responded by refusing her request. 40On 28 May 2012, the day before the hearing, Ms Banfield submitted the complete development application to the council.

Hearing on 29 May 2012 41On the first day of the hearing of the contempt proceedings, 29 May 2012, Ms Banfield appeared in person. No plea had been entered to the charge of contempt at that stage. 42The council submitted that Ms Banfield was clearly in contempt of the orders because the shed had not been demolished on or before 14 December 2011 as required, and that findings to this effect had been made in the judgment of Lloyd AJ delivered on 24 April 2012. 43Ms Banfield did not deny that, as at 14 December 2011, no development consent had been obtained from the council and that the building work required by order 2 of the orders had not been undertaken. Ms Banfield also conceded that she was aware that non-compliance with order 2 would result in her being held in contempt of Court. 44In light of these admissions, the Court briefly adjourned proceedings to allow Ms Banfield to consider her position in relation to entering a plea. 45Upon resumption, Ms Banfield entered a plea of guilty to the contempt charge, but sought to have the sentencing hearing adjourned to permit her to obtain additional evidence in mitigation of sentence. She told the Court that this evidence would consist of documentary evidence relating to her current financial position, evidence of her attempts to bring the unauthorised shed into compliance and, in light of Lloyd AJ's judgment, improved medical evidence detailing her health at the time of the commission of the contempt. 46The council did not oppose the adjournment, although it noted that the proceedings had a long history of delay. 47The Court agreed to adjourn the proceedings for two weeks to provide Ms Banfield the opportunity, as an unrepresented litigant, to adduce the additional material she described and to seek, if she desired, legal assistance from legal aid or a community legal centre. A timetable was set for the further conduct and hearing of the proceedings. 48By 14 June 2012, Ms Banfield had not filed and served her evidence as required. She informed the council and the Court, via telephone, that she required an additional period of time for the filing of her evidence, specifically, to allow her to visit and obtain a medical report from a qualified mental health professional. The Court granted Ms Banfield the extra time.

Hearing on 4 July 2012 49When proceedings resumed on 4 July 2012, Ms Banfield was ably represented by Mr Anderson of counsel. She relied on four affidavits sworn 27 March 2012, 19 April 2012, 19 June 2012 and 26 June 2012. 50The contents of those affidavits are, to the extent necessary, summarised below. 51Ms Banfield is legally trained and employed as a Legal Officer by the Commonwealth Attorney-General's Department earning approximately $125,000 per annum. However, notwithstanding this salary, Ms Banfield's financial position appears to be, as she stated to the Court before Lloyd AJ, precarious. 52In her affidavit affirmed 27 March 2012, Ms Banfield provided the following summary of her financial position: Current annual income from salary: $125,518 Additional income: $365.00 per fortnight - partner's payment of CBA business loan Net Fortnightly Income: $2,936.00 Dependents: 2 children ages 14 and 15 Assets Approximate Value Property at Lot 1 DP 1090531, Hazeldell Road, Mount Fairy, NSW $350,000 Vehicle - Toyota Corolla 2008 $10,000 (subject to lease agreement with payout figure of $8,000)

Breakdown of Debt: Debt Type Debt Amount Minimum Fortnightly Payment CBA Home Loan $313,432.93 $1,200.00 CBA Business Loan $21,788.46 $365.00 CBA Personal Loan $26,592.14 $323.00 NAB Personal Loan $13,167.34 $200.00 NAB Credit Card $8,392.66 $200.00 Citibank Credit Card $29,815.55 $300.00 Total $413,189.08 $2,588.00

53No underlying documents, for example bank statements or loan agreements, were provided to verify these amounts in that affidavit. 54No details of her husband's financial position were provided in this affidavit, other than to state that, due to the downturn in her husband's business, "the debt in my name is my sole responsibility". It is therefore unclear how her husband services the $365 per fortnight business loan repayment, particularly in light of evidence contained in Ms Banfield's affidavit affirmed 19 June 2012, which indicates that the payment is drawn from a bank account in her name. It was also unclear how her husband would pay for the improvements he offered to "personally...finance" in his email to the council dated 24 April 2012 referred to above. 55In the affidavit of 19 June 2012, Ms Banfield provided attached bank and loan statements. She stated that she was responsible for a mortgage, a personal loan and half of the balance of a business loan, held jointly in her name and that of her husband, Mr Powell, with the Commonwealth Bank of Australia ("CBA"). But not all of the statements were current. For example, the business loan in her and her husband's name was dated as at 11 January 2012 and the "Smart Access" statement was dated as at 30 April 2012. 56In this affidavit Ms Banfield stated that she had sought to consolidate her financial commitments into a single loan or similar restructure, but had requests declined by the CBA, the National Australia Bank ("NAB") and Aussie Home Loans due to her "financial overcommitment". With the exception of the latter financial institution, no objective proof of these requests was provided. Ms Banfield stated that her requests to consolidate loans at the CBA and NAB were declined verbally. Attached to her affidavit was a letter accompanying an online application to Aussie Home Loans dated 22 November 2011. Ms Banfield deposed that this application was also declined, although no proof of this was attached. But according to the financial information provided by her, Ms Banfield does not currently hold any loans with Aussie Home Loans. 57In its current state, I do not find this evidence satisfactory and place limited weight on it in the absence of any objective corroborating material. I also note that there is no evidence of any attempt by Ms Banfield to access her superannuation fund, as she earlier indicated that she would attempt to do. 58Further financial information was provided by Ms Banfield in her affidavit affirmed 26 June 2012. In particular, she reaffirmed that her husband's business, a bookshop in Bungendore, has suffered significant financial difficulties and that no income is currently derived from it. She also stated that financial records for the bookshop from 2008 to 2010 were lost when the business moved premises and, in any event, there has not been a tax return filed since that period because it has not generated any income. She stated that, as a consequence of the bookshop's financial failure, "our family has had to survive solely on my income". It is for this reason that she has had insufficient funds to proceed with the construction of the dwelling on the property. Again, no information was provided as to her husband's financial affairs. 59Ms Banfield deposed that the land on which the shed is located is 40 ha and is located approximately 45 minutes drive from Canberra. The property was purchased in 2007 in order to build a dwelling on it for herself, her husband and her two children. Because of the downturn in her husband's business, she has had insufficient funds to proceed with the construction of the dwelling. 60Initially, Ms Banfield lived with her family in a caravan. Later, she and her family moved to the shed, which her husband had constructed. 61She stated that the council informed her that if she was to continue living in the shed, the installation of a 45,000L water tank and a compliant septic system was required. But, Ms Banfield stated, this would cost $7,000 and would be "grossly uneconomic" because the shed was a considerable distance from the proposed construction site of the dwelling and to install the infrastructure would result in a cost thrown away once the dwelling was built. 62Ms Banfield also attested that: Demolishing the shed was never an option because we had nowhere else to live and could not afford rental accommodation. 63As an alternative, therefore, a development application was submitted for the construction of a temporary kit shed to be erected on the property near the proposed development site ("the temporary shed"). It was envisaged that this would be fitted with the required water supply and septic system, with the expectation that these items could be redirected to the actual dwelling at a later date. 64A deposit of $1,500 has been paid for the temporary shed and a development application, together with a request for temporary occupancy, was lodged with the council and was approved on 17 October 2011. But, Ms Banfield stated that, due to her ongoing financial impecuniosity, the temporary shed had not yet been erected. Ms Banfield gave oral evidence that to erect the temporary shed and render it habitable would cost approximately $23,000. 65Ms Banfield also tendered evidence of an assessment completed by both a builder and structural engineer of the shed that she and her family are currently residing in. First, a report from Mr K Hopkins of Molongol Building Services, was annexed to her affidavit. Mr Hopkins is a licensed builder in the ACT and NSW. It is not clear when the report was drafted. The report states as follows: The building has been erected and in use for 4 ½ years and is considered structurally sound an [sic] suitable to be classed as a storage shed. 66Mr Adam Gillett, a senior design engineer with Jones Nicholson Pty Ltd Consulting Engineers, provided a structural engineering report on 30 April 2012. His report notes that the structure "has not been completed". It is Mr Gillett's analysis that: ... the structure will be adequate for use as a shed when completed ... it is recommended that this structure be completed as soon as possible to ensure structural adequacy. The following should be done as a minimum. Ensure all internal timber posts are bolted to the slab, with an angle plate or similar, as has been done on one post. Use galvanised steel straps to tie down the steel rafters at each of the internal timber posts ... We can confirm that if the above items are rectified the structure will be adequate for its intended use as a shed/storage structure. 67It is abundantly clear that, contrary to the submissions of Ms Banfield, neither expert has endorsed the use of the shed as a structure suitable for human habitation. Any suggestion made by Ms Banfield to this effect is rejected. 68The cost of these two reports was, according to Ms Banfield's evidence, approximately $2,000. 69Ms Banfield stated that she had not previously lodged a development application in accordance with the consent orders because of conversations that her husband had had with the council indicating the council would in all likelihood refuse consent for the shed. 70An examination of the correspondence between Mr Powell and the council, contained in the affidavit of Mr Alan Bradbury, the solicitor for the council, sworn 22 May 2012, indicates that this characterisation of the council's conduct is inaccurate. At all times the council indicated that any such application would be considered on its merits. The council did, however, express its difficulty in determining any development application in light of the ongoing contempt proceedings. But, in any event, in the main this evidence post dates the time for compliance with the Court orders. 71Finally, Ms Banfield stated that she has a history of depression which has now manifested itself with anxiety related problems brought about by the stress of dealing with these proceedings and attempting to improve her financial position. Evidence to this effect was given by Dr Jill Brown in a short letter dated 21 June 2012, annexed to Ms Banfield's latest affidavit. 72This evidence is also unsatisfactory. First, it does not state Dr Brown's qualifications to give this evidence. Second, and more importantly, it does not state the causal nexus, if any, between her depression and the acts and omissions that have given rise to these contempt proceedings or Ms Banfield's inability to comply with the orders. Having said this, the Court accepts that she is currently suffering from depression, and that these proceedings are exacerbating her condition. 73The council relied on a surfeit of evidence (particularly in light of Ms Banfield's guilty plea), namely: (a)three affidavits of Mr Alan Bradbury, the solicitor for the council (sworn 12 April, 22 and 24 May 2012), detailing the history of non-compliance by Ms Banfield with the orders; (b)two affidavits of Ms Kylie Coe, the Coordinator of Development Services for the council (affirmed 8 March and 28 May 2012), concerning the lodging of a development application for the temporary shed and the lodging of a development application for the existing shed; (c)one affidavit of Mr Peter Bascomb, the General Manager of the council (affirmed 10 April 2012), deposing to Ms Banfield's request made on 21 December 2011 for a further extension of time to comply with the orders, which was refused via email to her husband, Mr Powell, who had authority to act on her behalf at the time; and (d)three affidavits of Mr Trevor Fuller, the Environmental Services Officer employed by the council (affirmed 22, 26 and 28 May 2012), which are relevantly discussed in further detail below. 74In his affidavit affirmed 22 May 2012, Mr Fuller stated that, first, there are a number of unapproved structures and dwellings in the council's local government area. And second, that his inquiries into the availability of alternative rental accommodation in the Bungendore and Queanbeyan areas revealed that there was a range of accommodation containing two or more bedrooms from $260 per week. 75In his affidavit affirmed 26 May 2012, Mr Fuller detailed his observations pursuant to various inspections of the property from 2008 to 2011. Photos of his inspections were annexed to his affidavit. In particular he observed during his inspection on 1 September 2010, that the shed still appeared to be under construction. He also observed a pipe protruding onto open ground that was connected to an inside toilet that had been installed. Inside the pipe he observed a brown substance that he believed to be raw effluent. 76These observations were responded to by Ms Banfield in an earlier affidavit affirmed by her on 19 April 2012. In addition to complaining about the "discriminatory, unfair and unprofessional conduct of the Respondent Council" and alleging various unspecified breaches of the Local Government Act 1993, Ms Banfield denied that the pipe observed by Mr Fuller was connected to the toilet or discharged effluent. Rather, the toilet was used as a composting facility and was emptied daily. 77In the absence of any analysis by a suitably qualified expert, I do not accept that what Mr Fuller observed was raw effluent and I accept the evidence of Ms Banfield in this regard.

Sentencing Principles for Contempt 78The punishment that may be imposed by the Court for contempt is the same that may be imposed by the Supreme Court by virtue of r 6.3 of the Land and Environment Court Rules 2007. Pt 55 r 13 of the Supreme Court Rules 1970 identifies the nature of punishment as including a fine or imprisonment. 79A number of decisions of this and other courts establish that enforcement of the process and orders of the Court, and punishment for their breach as a vindication of the Court's authority, are important functions of contempt proceedings (Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126, Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210, Fairfield City Council v Adams (No 2) [2010] NSWLEC 45, Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20, Jeray at [26]-[27], Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79 at [19], Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132, Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246; (2011) 186 LGERA 245 at [92]-[96], Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [75], ASIC v Sigalla (No 4) [2011] NSWSC 62 at [64] and Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72 at [22]-[24]). 80In the frequently cited decision of Pannowitz (No 2), Lloyd J discussed a number of the leading authorities and stated the following (at [20]-[23]): [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 the High Court referred (at 107) to Borrie and Lowe's Law of Contempt, 2nd ed (1983) at 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 served 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 (1999) 198 CLR 435 at 485 [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. 81The importance of punishment for contempt in order to uphold the effectiveness of the administration of justice has also been emphasised in a number of cases (for example, Brown Brothers (No 2) at [88]-[90], Kelly (No 6) at [9], Adams (No 2) at [17] and Mihalopoulos (No 3) at [23]). 82In each particular case, an appropriate sentence may be determined by the "instinctive synthesis" of the objective seriousness of the offence and subjective factors of the offender (Markarian v R [2005] HCA 25; (2005) 228 CLR 357, Ramsey Food (No 4) at [94] and Crimes (Sentencing Procedure) Act 1999 ("the CSPA"), ss 3A and 21A). 83The factors to be considered in the course of sentencing an offender were listed by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (at 185) and have been endorsed by this Court on numerous occasions (Brown Bros (No 2) at [93], Ramsey Food (No 4) at [96], Adams (No 2) at [18] and Mihalopoulos (No 3) at [24]). They include: (a)the seriousness of the contempt proved; (b)whether the contemnor was aware of the consequences to himself of what he did; (c)the actual consequences of the contempt on the relevant trial or inquiry; (d)whether the contempt was committed in the context of serious crime; (e)the reason for the contempt; (f)whether the contemnor has received any benefit by indicating an intention to give evidence; (g)whether there has been any apology or public expression of contrition; (h)the character and antecedents of the contemnor; (i)general and personal deterrence; and (j)denunciation of the contempt. 84In the present case, the factors listed in (c), (d) and (f) are not relevant. 85In addition to the factors above, the aggravating and mitigating factors set out in s 21A(2) and (3) of the CSPA also apply to the sentencing of contemnors (Environmental Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 at [48]).

The Seriousness of the Contempt 86The seriousness of the contempt is an important factor in determining the appropriate sentence to be imposed. Ascertainment of the seriousness of the contempt requires consideration of the nature of the contempt.

The Contempt is Wilful 87Contempt is often considered in terms of whether it is technical, wilful or contumacious (Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33], Mihalopoulos at [27], Adams (No 2) at [13]). 88Irrespective of the classification of the contempt, the criminal standard of proof applies (Pang at [62] and [72] and Mihalopoulos at [28]). 89Contempt will be classified as technical where it is "casual, accidental or unintentional" (Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at [147]-[148] and Strata Plan 18945 at [20]). As was accepted by Ms Banfield, the present contempt can in no way be classified as technical. 90Contumacious contempt is a more serious species of contempt, and is said to occur where there is an element of deliberate defiance of the Court's orders (Pelechowski at [147]-[148], Gerondal (No 5) at [33] and Ramsey Food (No 4) at [101]). The parties submitted, and the Court accepts, that this is not a case of contumacious contempt. 91Contempt will be seen as wilful if there is evidence of "deliberate conduct but without specific intent to defy judicial authority" (Strata Plan 18945 at [20]). Thus wilful contempt is disobedience that is more than casual, accidental or unintentional, but which falls short of a specific attempt to defy the authority of the Court (Brown Brothers (No 2) at [86], Pelechowski at [147]-[148], Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 at [74] and Adams (No 2) at [13]).

Reasons for the Contempt 92In classifying the contempt, Ms Banfield's reasons for non-compliance with the orders must be considered (Mihalopoulos (No 3) at [29]). 93Ms Banfield adduces evidence of her adverse financial circumstances as the principal reason for non-compliance with the orders. She submits that she has suffered significant financial misfortune since the consent orders were entered in June 2011, particularly as a result of the downturn of her husband's business. Ms Banfield states that she has attempted to improve her financial situation by advertising, in the hope of selling, her husband's business; by seeking additional employment; by making enquiries as to voluntary redundancy; and by making enquiries for the early release of superannuation. Other than bare statements by Ms Banfield, no objective proof of these attempts was put before the Court. The Court is therefore unable to assess the genuineness of the attempts made by her. 94In fact I do not accept that Ms Banfield's adverse financial circumstances are, as she submits, a complete answer to her failure to comply with the orders. As the chronology of events demonstrates, she has, at every opportunity, resisted compliance with the orders. It was not, for example, until the day prior to the hearing of the contempt proceedings that she lodged a development application with the council in respect of the shed. This recalcitrance appears to stem from a belief by Ms Banfield, as manifested in her written evidence, that the council has acted irrationally and unreasonably by seeking to enforce the orders. She complains, for example, that the council has been uncooperative and offers this as a further reason for her breach of the orders. She claims that the council did not respond to her requests for advice, and that when advice was given, it was "dismissive, conflicting and often inaccurate". 95In my opinion, the council has been more than accommodating and sympathetic to Ms Banfield's plight. It acceded to Ms Banfield's initial requests to extend the time for compliance with the orders. It approved her application to build an alternative temporary dwelling. At all times it has sought to promptly and politely respond to her, or her husband's, communication. The evidence does not demonstrate that Ms Banfield was given "conflicting advice" by council officers regarding the possibility of obtaining retrospective development approval for the shed. 96While I accept that Ms Banfield has been experiencing financial difficulties from the time the consent orders were entered into in June 2011, and that this has been a great source of distress to her, Ms Banfield's conduct constitutes a deliberate and sustained course of conduct over a period of time. As the council has correctly submitted: it has been more than eighteen months since the kit home dwelling was approved on the Property, more than seven months since the alternate temporary dwelling was approved and more than five months since the Court's Orders were to have been finally complied with. 97During this time Ms Banfield was aware than non-compliance would put her in contempt of Court. Indeed, Ms Banfield admitted as much during proceedings on 29 May 2012. 98For these reasons the contempt is properly classified as wilful.

No Actual Environmental Harm 99The consequences of the contempt, in respect of whether or not there was any existing or potential harm done to the environment, are also relevant to the objective gravity of the offence (s 21A(3)(a) of the CSPA). 100There is no evidence that the presence of the shed has caused any actual harm to the environment. 101However, as the evidence of Mr Fuller demonstrates, the council is concerned that the shed was without approved sanitary facilities and appears structurally unsound. 102The building and engineering evidence provided by Ms Banfield does not alleviate these concerns. 103Given the lack of proper sewage facilities and the fact that the shed has not been certified as safe for human habitation, I find that there is a potential for environmental harm, albeit minor.

Conclusion on Objective Seriousness 104It follows from the discussion above concerning the wilful nature of the contempt, the length of time the contempt has continued, the reasons for the commission of the contempt and the fact that there is the potential to cause environmental harm, that the contempt is of moderate objective seriousness.

Factors in Aggravation 105The Court accepts the submission of the council that there are no aggravating factors present in these proceedings.

Mitigating Factors 106The mitigating factors include that Ms Banfield is of good character (s 21A(3)(f) of the CSPA), has no antecedents, has now accepted responsibility for the contempt (s 21A(3)(b)) and has expressed remorse and contrition for the contempt (s 21A(3)(i)). 107Ms Banfield ultimately pleaded guilty to the charge. Where a guilty plea is entered at the first available opportunity in the proceedings, it may entitle the defendant to a discount in the penalty of up to 25% (ss 21A(3)(k) and 22 of the CSPA). In this case, however, the plea was only entered at the commencement of the hearing. In these circumstances I do not consider that the full discount is appropriate in these circumstances, but rather that a discount of 15% is appropriate.

The Contempt Remains Unpurged 108Ms Banfield submits that she has taken several steps to purge the contempt. Whether compliance has been achieved is a matter relevant to sentencing, as recognised by Pain J in Mihalopoulos (at [36]). 109A development application for temporary occupancy of the existing shed, as well as an application for modification of the existing consent for temporary occupancy of a kit shed, was ultimately lodged at council chambers on 28 May 2012. 110But these steps have not, and cannot, purge the contempt as a plain reading of the orders demonstrates. Because no development consent was obtained by Ms Banfield permitting her occupation of the shed by 14 December 2011 as required by the orders, the only way in which the contempt could, after that date, be purged was to demolish the shed. This has not been done. 111Ms Banfield submits that this cannot be done because of her dire financial position. I disagree. To reiterate, first, I do no accept as wholly accurate Ms Banfield's stated financial position. Her records are either incomplete or not current. The Court is troubled by the absence of any information concerning the financial affairs of her husband. Second, insufficient attempts have been made by Ms Banfield to improve her fiscal position. Third, there is no cogent evidence that Ms Banfield has made genuine attempts to secure alternative accommodation. 112Having said this, I am nevertheless mindful of the depression and anxiety Ms Banfield suffers, but note that none of the medical evidence indicates that she is unable to purge the contempt.

Penalty to be Imposed 113In terms of the appropriate punishment, it is necessary to impose a penalty that denounces the contempt and takes into account any need for general or specific deterrence. 114Although Ms Banfield urged upon the Court the imposition of a community service order, I have determined that a fine is an appropriate punishment in the circumstances. A community service order will only further delay the final resolution of these proceedings. Further there is no assessment before the Court as to the suitability of Ms Banfield for community service work (s 86 of the CSPA). 115Ms Banfield's financial position, while relevant (see further the discussion below), is, however, no impediment of itself to the imposition of a fine. In Adams (No 2) a fine was imposed in circumstances where the contemnor was bankrupt. Pain J said (at [26], see also her Honour's remarks in Gerondal (No 6) at [26]): 26 The limited means of the Defendant to pay a fine is a relevant consideration under the Fines Act 1996, s 6, as held by Pepper J in Pittwater Council at [125]-[126]. I accept that the Defendant is bankrupt and has limited ability to pay a fine but the need for general deterrence suggests that one should be imposed, see the findings of Lloyd J in Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [15]. 116In Environmental Protection Authority v Douglass (No 2) [2002] NSWLEC 94 Lloyd J imposed a fine in circumstances where (at [15]-[16]): 15.The defendant has given evidence before me. He has no fixed place of abode. He has relied on friends for accommodation. He only has employment on a casual basis. He has been trained as a marine engineer but work as a marine engineer is not available to him. His only substantial asset is the land. He has a second-hand motor vehicle and tools of trade. Under these circumstances the question is posed, what is the utility of imposing a substantial penalty upon the defendant? 16.The purpose of a penalty is not only to act as a specific deterrent but to act as a general deterrent, that is, to discourage others who might be minded to commit similar or like offences in the future. I also must have regard to the seriousness of the offence in this instance. Having regard to all of these considerations I am of the view that a penalty being some 75 per cent of the maximum is appropriate. That is a penalty of $45,000. 117In Ramsey Food (No 4) the Court imposed a fine in circumstances where the contemnor was insolvent. Likewise in Ableway at [32] Lloyd J fined defendants who were insolvent and bankrupt respectively.

Need for Specific and General Deterrence 118Mr Fuller attested to the fact that there are numerous unapproved structures and dwellings within the Palerang local government area. The council submits that there is therefore a need for general deterrence. I agree. 119The persistent nature and duration of Ms Banfield's non-compliance with the orders means that there is a need for specific deterrence in this case. Any punishment imposed should accordingly contain a coercive element. 120The council proposes that, in order to maximise the coercive effect, a periodic fine should be imposed for the time during which the contempt continues, suspended for a period to allow purging of the contempt. 121The coercive purpose of a periodic fine to purge the continuing contempt of a court order was accepted by the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986)161 CLR 98 (at [114]). Periodic fines have been imposed in previous decisions of this Court (see, for example, Kelly (No 6) and Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147). In Kelly (No 6) it was held that 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 (at [20]). 122In my opinion, a periodic fine is appropriate in all the circumstances in light of the lengthy period of non-compliance by Ms Banfield. 123However, because of the financial circumstances of Ms Banfield the order should be suspended for a sufficiently lengthy period of time to allow the contempt to be purged without the imposition of this additional penalty. 124

Capacity to Pay 125Pursuant to s 6 of the Fines Act 1996, the Court must consider the capacity of Ms Banfield to pay any fine imposed (Brown Brothers (No 2) at [125]-[126] and Adams (No 2) at [26]). 126Notwithstanding my criticisms of the financial evidence relied upon by Ms Banfield, it is nevertheless tolerably clear that she has a limited capacity to pay a substantial fine. I have also taken into account the likelihood that Ms Banfield will be liable to pay the costs of the council of these proceedings and that they are likely to be substantial. 127However, although the Court cannot vary the statutory period for the payment of any fine specified in the Fines Act, application for time to pay any penalty imposed can be made to the Registrar of this Court under s 10 of that Act (Mihalopoulos at [40]). This avenue is therefore open to Ms Banfield.

Consistency in Sentencing 128A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court. At the same time, it must be recognised that each case is different and deserves individual attention (Brown Brothers (No 2) at [127], Kelly (No 6) at [17] and Adams (No 2) at [27]). 129In Kelly (No 6) the defendant was held to be in contempt of a court order requiring him to demolish a garage located on his property. At the time of sentencing the contempt remained unpurged. The contempt was serious but not contumacious. Few mitigating factors were present. The defendant was fined $20,000 and the Court found that a periodic fine of $5000 per calendar month was appropriate to maximise the coercive effect of the penalty, suspended for five months to allow the contempt to be purged. 130In Hunters Hill Council v Hakim [2010] NSWLEC 62 the defendants were fined $12,000 and $2,400 respectively (they were husband and wife) for failing to comply with consent orders requiring them to remove a brushwood fence erected absent consent. There were no aggravating factors, but the defendants' financial difficulties and their pleas of guilty and expressions of remorse were taken into account as factors in mitigation, justifying a 20% discount in the fine. Each defendant was ordered to pay a daily penalty of $1000 per day while the contempt remained unpurged. The defendants were also ordered to pay costs on an indemnity basis. 131In Adams (No 2) the defendant was fined $15,000 for his wilful failure to comply with consent orders to remove fill placed on his property absent development consent. No aggravating circumstances were present and a number of mitigating factors were taken into account. 132In Tweed Shire Council v Sikiric (No 2) [2012] NSWLEC 119 the defendant was found in contempt for failing to comply with court orders requiring the removal of poultry and the demolition of a chicken shed on his property. No contrition was expressed by him, although he had entered a guilty plea. The defendant claimed to be suffering from depression. The defendant was fined $18,000 and a weekly periodic penalty of $2000 was imposed. He was ordered to pay costs on an indemnity basis. 133Ms Banfield submitted that the facts of the present proceedings were more analogous to the decision in Ku-Ring-Gai Council v Labordus [2009] NSWLEC 30. That case concerned contempt proceedings arising from the failure to comply with consent orders requiring the defendant to demolish and remove a retaining wall between two adjoining properties. The defendant's financial position was "bad" and this delayed her employing a contractor to carry out the remediating works. The Court convicted the defendant and ordered costs to be imposed on an indemnity basis but did not impose a fine. 134Labordus can, however, be distinguished from the facts of the present case insofar as there was evidence that genuine attempts had been made by the defendant to comply with the orders in question but the defendant was let down by contractors and hampered by bad weather. Furthermore, the defendant was elderly and in poor health.

Costs 135The council seeks its costs of the proceedings payable by Ms Banfield on an indemnity basis, as compensation for the costs the council has incurred in its protracted pursuit of compliance with the orders. The council submits that Ms Banfield has conducted herself unreasonably and points to the series of email exchanges between her husband and the council (referred to above) in support of this submission. 136The emails sent by Mr Powell have done little to assist Ms Banfield. While it is correct that the communications were sent while he was authorised to conduct Ms Banfield's affairs on her behalf, these are proceedings that carry criminal consequences for Ms Banfield and it is not known if she was aware of their content or even if they were sent. I therefore propose to ignore them for sentencing purposes. 137In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 Pain J helpfully collected an number of authorities where indemnity costs have been ordered in contempt proceedings (at [34]): 34 The issue then arises of whether costs ought be ordered on an indemnity basis. In Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225 Sheppard J at 233-4 identifies a number of circumstances where courts have held that a costs order ought be made on an indemnity basis. While not an exhaustive list of cases, which would be impossible to identify in any event, the award of costs on an indemnity basis against a contemnor is identified with the example of EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 referred to. Similar observations were made in Degmam Pty Ltd v Wright (No 2) [1983] 2 NSWLR 354 at 358 (Holland J). One example of the award of indemnity costs in contempt proceedings in this Court is Sutherland Shire Council v Sawyer [2000] NSWLEC 162. I consider that indemnity costs should be awarded to the Applicant. 138In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 118 ALR 248 Sheppard J identified various circumstances where indemnity costs have been awarded (at 257): ... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 139In ASIC v Sigalla (No 4) White J noted that indemnity costs are commonly awarded in civil contempt cases as an important sanction to mark the court's condemnation of the breach of its orders (at [49]). 140In Gerondal (No 6) Pain J went on to state (at [19]): Costs are sought by the Council on an indemnity basis under general costs principles applying to contempt proceedings which apply in this Court. As observed in GE Dal Pont, Law of Costs, 2nd ed (2009) LexisNexis Butterworths, indemnity costs may be awarded in contempt proceedings as a matter of judicial discretion. White J in ASIC v Sigalla suggests these are commonly awarded. Dal Pont states at 547 - 9 (footnotes omitted): In EMI Records Ltd v Ian Wallace Ltd Megarry VC observed that special costs orders are needed in cases of contempt because 'nothing should be done to deter a person from bringing a contempt to notice of the court; and the risk of having to bear any of the costs will often be a real deterrent'. Contempt proceedings, it is reasoned, serve a public interest, such that a person who successfully brings these proceedings should not be left out of pocket. It has been judicially remarked, to this end, that it is a 'common or usual practice' to order that the contemnor pay costs on an indemnity basis, and the case law reveals multiple examples of indemnity costs awards in this context. But there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of the curial costs discretion. A relevant consideration is whether, aside from the costs order, a penalty has been imposed for the contempt. If no other penalty is imposed, the court may be more inclined to employ 'a heavy order for costs as a means of imposing something in the nature of a sanction'. If, say, significant fines have been imposed, the 'penal' or 'deterrent' aspect of a special costs order may have less justification. Also relevant is the plaintiff's conduct and level of success. ... That the contemnor has subsequently purged the contempt will not by itself guard against a special costs order if the contemnor's conduct has already caused the opponent to incur costs in bringing contempt proceedings. 141Whether a party has means to pay a costs order is not a relevant consideration as to whether a costs order should be made, including on an indemnity basis (Ableway at [32] cited in Gerondal (No 6) at [15] and see Hakim at [17]). 142In this Court, indemnity costs have been awarded in a number of cases (Pre-Cast Concrete Solutions, Pham (No 2), Liverpool City Council v Palerma Pty Ltd and Parilo (No 2) [2009] NSWLEC 45, Labordus, Hakim, Ramsey Food (No 4), Gerondal (No 6) and Sikiric (No 2)), although often without a detailed discussion of the applicable principles or the factors informing the Court's exercise of its discretion to award costs on that basis. 143Despite the considerable delay, and despite the continuing nature of the contempt, I do not consider that the conduct of Ms Banfield has been such that an order for indemnity costs is warranted. I therefore decline to order that the council's costs be payable on this basis. 144Finally, the council sought an order pursuant to s 694 of the Local Government Act that any fine imposed be payable to the council and allocated by the council to its consolidated fund. 145In my opinion, such an order would be unsatisfactory given Ms Banfield's financial circumstances. In particular, the making of such an order would mean that Ms Banfield would lose her opportunity to apply to the Registrar of the Court for additional time in which to pay the fine. 146Taking into account the objective and subjective factors outlined above, I consider that a penalty of $20,000 is appropriate, discounted by 17% having regard to Ms Banfield's subjective circumstances. This amounts to a total fine of $16,600.

Orders 147The orders of the Court are as follows: (1)Ms Banfield is convicted of contempt of court as charged in the statement of charge filed 12 March 2012; (2)Ms Banfield is fined $16,600 to be paid to the Registrar of the Court within 28 days of today's date; (3)Ms Banfield is fined $2,000 per calendar month to be paid to the Registrar of the Court, the first payment to be paid on 4 October 2012 and monthly thereafter so long as the orders of the Court made on 17 June 2011 continue to not be complied with; (4)order 3 is suspended for a period of three months until 4 October 2012 and is discharged if Ms Banfield has complied with the orders of the Court made on 17 June 2011 and prior to that date; (5)Ms Banfield is to pay the council's costs of the contempt proceedings as agreed or assessed; and (6)the exhibits are to be returned.

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 July 2012