Pittwater Council v Brown Brothers Waste Contractors Pty Limited

Pittwater Council v Brown Brothers Waste Contractors Pty Limited - [2009] NSWLEC 210 - NSWLEC 2009 case summary — Zoe

[91]

65 Finally, Mr Brown stated that notwithstanding that the company had an estimated annual turnover of $2 million in this financial year, it was estimated that due to the global financial crisis the company would post a loss of around $100,000 this financial year. No documentary evidence was tendered in support of this estimate. Findings Made in Relation to Mr Brown's Evidence 66 Overall, I did not find Mr Brown's evidence to be satisfactory. Not only did his oral testimony contradict, in part, evidence contained in his written affidavits, Mr Brown was also largely unresponsive in relation to the questions asked of him in cross examination and was reluctant to make obvious concessions. 67 I do not accept that his solicitors gave him the advice that he claims to have received, namely, that the terms of the Court order were ambiguous. The details given by Mr Brown of this very important piece of evidence were too vague for it to be credible. Rather, I find beyond reasonable doubt that any ambiguity in the order was the exclusive product of Mr Brown's state of mind, which he then sought to take advantage of. 68 Had this advice been given, it is unbelievable that in the face of potential contempt proceedings Mr Brown would not have done more to clarify the ambiguity with his legal representatives and would not have sought to err on the side of caution by ensuring compliance with the orders. 69 I find beyond reasonable doubt that Mr Brown chose to continue to receive full skip bins and to store them on the Premises if they could not be taken to the tip the same day with the knowledge that he was possibly breaching the Court order and with the knowledge that the Council was of the view that he was breaching the Court order. 70 I also find beyond reasonable doubt that this decision was taken purely for financial gain. I regard as spurious the distinction between acts of the company motivated by the desire to offer good service and acts of the company motivated by a desire to maintain or increase its business, and therefore, revenue. They are, in my view, one and the same. Possible Adjournment to Purge Contempt 71 After the evidence had concluded but prior to submissions, it was faintly put forward by counsel for the respondent that in light of the fact that the contempt was ongoing an adjournment ought to be granted so that the contempt could be purged. However, no application was made to the Court in this regard. Submissions of the Council 72 The Council submissions may be summarised as: (a) this was not a contumacious contempt, but it was wilful, in the sense of not casual, accidental or unintentional. The contempt was at the serious end of the scale given the length of time during which the contempt had been ongoing, namely, from 28 February 2008 to the date of the hearing, 22 June 2009;

[97]

(c) third, from 18 April - 22 June 2009: when 10 per cent of the skip bins were being stored on site with material in them but with an average turn around of two to three days. The photos taken during the site inspection of 5 May 2009 by Mr Larsen were consistent with Mr Brown's estimate that only 10 per cent of the bins being stored on site had material in them. The respondent emphasised that at this site inspection Mr Larsen concluded that no further action was required. The site inspection of 29 May 2009 yielded a similar result. 74 Thus the respondent submitted that during the first period a genuine attempt had been made by BBWC to remedy the situation and it was a procedural or "legal failure" that caused BBWC to be in default of the Court orders. 75 During the second period BBWC had attempted to deal with the outcome of the failed attempt to modify the Court orders. There was significantly less contravening activity on the Premises, a fact accepted by Council, and but for the storage of material and bins on the Premises, BBWC was otherwise in compliance with the orders. 76 The respondent emphasised that during the third period there was no evidence of any actual environmental harm and the risk of harm was negligible. Whilst it acknowledged that there was asbestos on the Premises, BBWC submitted that it was dealt with in the appropriate way when it was able to be identified. The respondent submitted that this had been accepted by Mr Larsen. 77 The respondent acknowledged that this was more than a mere technical contempt. It acknowledged that the matter was serious but submitted that it was at the low end of the scale in terms of its impact. Further, it emphasised that the duration of time in which the respondent was in contempt was relatively short (four months given the time period specified in the change) and that BBWC had genuinely attempted to regularise its conduct. 78 In relation to the relevant factors to take into account in determining the appropriate penalty, the respondent made the following submissions: (a) that the contempt proved was serious;

[103]

(g) that in relation to general and personal deterrence, the respondent submitted that there was no need for any specific personal deterrence as this had been an expensive lesson for the company and its director. The respondent further submitted with respect to deterrence that the ambiguity of the Court order and the original Development Consent, together with the failure of the respondent to clarify this ambiguity, was not a matter that went to deterrence but rather was a matter that went to the wilfulness and seriousness of the contempt; (h) that with respect to the factors in s 21A of the CSPA, the respondent submitted that in relation to the aggravating factors there was negligible risk of any environmental harm occurring as a result of the contempt. In relation to factors in mitigation, s 21A(3) (e), (f), (g), (h), (i), (k), (l) and (m) were relevant; (i) that BBWC had cooperated at all times with the Council and that the late provision of affidavits did not in reality hinder the prosecution and ought not be considered; (j) rather, that when regard was had to the cooperation afforded by BBWC, the short period of time over which the contempt took place, the early plea of guilty, the fact that no real environmental harm was likely to have ever resulted, even with asbestos present on the site, and the fact that the contempt was at the lower end of the scale, a minimal penalty was warranted; and (k) that the Court ought to consider the likely high burden of the costs that the respondent would have to pay. Consideration Sentencing Principles for Contempt 79 The Council submitted that notwithstanding these are Class 4 proceedings they were criminal in nature. 80 I did not take this submission to mean that the contempt in question was a criminal, rather than civil, contempt. This is because, as appears from the decision in Witham v Holloway (1995) 183 CLR 525, disobedience of a court order in civil proceedings is a civil contempt, but will amount to a criminal contempt if it involves deliberate defiance, or as is sometimes described, it is contumacious (Witham v Holloway at 530 and see also 538-539). In the present case the contempt cannot be so classified. 81 In Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91, after consideration of the existing authorities, Biscoe J concluded (at [58]): 58 Thus, disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway ; or

[104]

(b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street . 82 His Honour, however, did not have the benefit of the recent decision in Matthews v ASIC [2009] NSWCA 155 wherein Campbell JA expressed doubts that the basis upon which civil and criminal contempts could be distinguished was settled. Campbell JA stated (at [197]): 197 I do not read the decision in Hearne v Street as resolving any general question about the basis on which one distinguishes civil contempts from criminal contempts. At [130] Hayne, Heydon and Crennan JJ referred to some remarks of Ipp JA in which his Honour identified circumstances that would "prima facie" be regarded as a civil contempt, or that would "tend to show" that the contempt is civil, but at [131] Hayne, Heydon and Crennan JJ declined to decide the correctness of those remarks. In any event, the remarks of Ipp JA do not purport to be a definitive statement of where the difference between civil and criminal contempt lies. The reasoning of the High Court majority in Hearne v Street at [135]-[140] as to why the contempt involved in the case before them was civil, was closely tied to the facts of the case… 83 In Kelly (No 3) the question of whether or not the contempt was criminal or civil was relevant to the issue of whether or not the statement of charge was defective because the contempt was criminal and the charge did not allege contumacious conduct or disobedience. 84 In this case no such issue arises and, in any event, the distinction ultimately does not matter because it is well established that all proceedings for contempt, whether they be classified civil or criminal in nature, are treated as criminal insofar as all charges of contempt must be proven beyond reasonable doubt (Witham v Holloway at 534 and Matthews v ASIC at [27] and [154]). This is no doubt because while civil contempt is not a criminal proceeding, it may result in the imprisonment of the contemnor (Matthews v ASIC at [161]). 85 It was common ground between the parties that the relevant class of contempt was that of wilful contempt in the sense referred to by Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 (at [147]) (see also Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309). I agree. 86 A contempt will be seen as wilful if there is evidence of "deliberate conduct but without specific intent to defy judicial authority" (Parramatta City Council v Roy DR Services Pty Limited, Ray Yong Xu [2005] NSWLEC 756, Queanbeyan City Council v Pre-Cast Concrete Solutions [2008] NSWLEC 147 at [24] and Blacktown City Council v Butler [2008] NSWLEC 295 at [17]). 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. 87 In the present case the contempt was wilful in the sense that it did not reveal a specific intent to defy the authority of the Court. Put another way, the conduct of BBWC was not casual, accidental or unintentional, but constituted a sustained course of conduct over a specific period of time. The fact that the Council came to an arrangement with BBWC on 11 April 2008 that it would not take steps to enforce the Court orders as long as the DA was prosecuted did not render the conduct by BBWC anything other than wilful. Likewise, the fact that BBWC had filed an application to vary the Court orders did not transform the character of the contempt. In any event, there could be no doubt after the Council's letter of 30 January 2009 that it considered the conduct to be prohibited. The respondent understood this as at early April 2009 but continued up to the date of the hearing to contravene the Court order. 88 The legal principles governing charges of a contempt have been well traversed and are not repeated here. There was no dispute between the parties as to their content or application. These principles have been usefully summarised in a number of recent judgments of this Court (see Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84, Burwood Council v Ruan [2008] NSWLEC 167 at [7]-[15], Kelly (No 3) at [71]-[82] and Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 at [20]-[24]). 89 In Pannowitz (No 2) Lloyd J stated the following proposition (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 (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.

[106]

[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. 90 This is because "all breaches of court orders are serious" (Liverpool City Council v Palerma Pty Ltd and Panilo (No 2) [2009] NSWLEC 45 at [6] citing Witham v Holloway at 533-534). Thus in Maniam [No 2] at 314 Kirby J said: A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way … Sentencing Factors 91 I accept the parties' submissions that the appropriate penalty is a fine. 92 The general approach for sentencing for contempt has been articulated in a number of cases (Maniam [No 2] at 314 per Kirby P and Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 per Dunford J). In Matthews v ASIC the Court of Appeal (at [129]) endorsed the factors listed by Dunford J in Wood v Staunton (No 5) (also endorsed in this Court in Ruan at [18]-[19] and Palerma Pty Ltd and Panilo (No 2) at [7]). 93 Having regard to those factors, and the matters set out in ss 3A and 21A of the CSPA (that Act applies to the sentencing of contemnors: Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469 at [47]), the following considerations are relevant to the determination of an appropriate penalty in this case: (a) the seriousness of the contempt proved;

[129]

107 Furthermore, the genuineness of the expression must be doubted given the respondent's statement on 2 April 2009 that the contemptuous conduct would stop, but by its own admission it proceeded to nevertheless continue to breach the Court order. Good Character 108 Neither the directors of the company nor the company itself have any antecedents. 109 A number of testimonials were handed up at the hearing to the effect that Mr Brown was a man of good character. However, full weight cannot be accorded to them because the authors did not appear to have been provided with the full facts at the time they were written. In particular, the fact of BBWC's plea of guilty and the fact that BBWC continued to be in breach of the Court orders, do not appear to have been furnished. 110 Otherwise, apart from the events giving rise to the commission of the contempt, I find the respondent to be of good character. Personal Circumstances 111 Apart from Mr Brown's oral evidence (unsupported by any documentation such as financial statements or company returns) that due to the global financial crisis it was estimated that the company would make a $100,000 loss this financial year, there were no other personal circumstances relevant to the determination of penalty put forward by the parties. Specific Deterrence 112 I do not agree with the submissions made on behalf of the respondent that there was no need for specific deterrence in relation to the imposition of the penalty. The contempt has been ongoing since at least 28 February 2009. It continued up to the date of the hearing. Significantly, the contempt occurred in circumstances where the Council sought to come to an understanding with the respondent in order to resolve the matter and where the respondent was clearly put on notice of the Council's view that it was in contempt of the Court order. 113 Even accepting the respondent's evidence that it believed that the Court order was ambiguous, it sought to exploit the ambiguity and simply ignored the potentially serious consequences both to itself and to the environment of being in breach of the order rather than seek clarification. 114 In summary, there was a breach of a Court order over approximately a four month period in circumstances where the respondent was, at the very least, aware of the very real possibility that it was in breach of the order and where it "must have been aware that [its] activities were causing difficulties, inconvenience and serious intrusion into the amenity of some of [its] neighbours" (Newcastle City Council v Leaway Pty Limited [2005] NSWLEC 305 at [5] and [12]-[15]), but it continued in a mode the Council correctly described as "business as usual". It is conduct that cannot be tolerated. This indicates a strong need for specific deterrence.

At a glance

Court

Decision date

Before

Source

Judgment (157 paragraphs)

Parties

Cases Cited (28)

Cited By (20)