2 All other charges against Ironcroft Pty Ltd are dismissed.

3 All charges against Ernest Patzold are dismissed.

4 Ironcroft Pty Ltd is ordered to pay the costs of the City of Port Phillip in bringing and prosecuting the contempt charges against it on a party/party basis.

5 There is no order for costs in relation to the proceedings brought against Ernest Patzold.

6 For the purpose of assessing which costs incurred by the City of Port Phillip are costs in prosecuting the charges against Ironcroft Pty Ltd and which costs were costs incurred in pursuing the charges against Mr Patzold, 90% of all costs, assessed on a party/party basis, are to be attributed to the proceeding against Ironcroft Pty Ltd.

1 On 15 March 2002 the City of Port Phillip (the council) granted Permit No 85/2002 (the permit) pursuant to the Port Phillip Planning Scheme in relation to land at 87 and 89 Acland Street, St Kilda (the subject premises), allowing an existing restaurant, with an on-premises liquor licence, to have extended trading hours. The permit was subject to a number of conditions, including:

6 Without further consent of the responsible authority no form of public address system or sound amplification equipment shall be used on the premises so as to be audible outside the premises.

2 The use of the subject premises as a licensed restaurant was also subject to Licence No 32228002 (the licence) pursuant to the Liquor Control Reform Act 1998. One of the conditions of the licence was that the licensee shall ensure that the level of noise emitted from the premises shall not exceed the permissible noise levels for entertainment noise as specified in the State Environment Protection Policy (Control of Music Noise from Public Premises) No N-2 (SEPP N-2).

3 In May 2003 the council made application for an interim enforcement order pursuant to the Planning and Environment Act 1987. The council alleged that the subject premises were being used in a manner that contravened the permit, in particular condition 6 of the permit. Orders were sought against Ironcroft Pty Ltd (Ironcroft), Ernest Patzold (who is the sole director of Ironcroft), and the owners of the subject premises. During the course of the hearing before the tribunal discussions were held between the council and the respondents as to proposed orders. These discussions led to a measure of agreement as to the form of the orders and, ultimately, orders, directions and undertakings were made by consent. It is unnecessary to set out all the orders, directions and undertakings that were made. However these included:

3 The said respondents [which was a reference to Ironcroft and Mr Patzold] undertake not to exceed those noise levels when established under such State Environment Protection Policy No N-2 and, until such levels are established, not to emit from the premises amplified music noise so as to be audible within the residential premises of Ms Lisa Bowman with the windows of such premises shut, such premises being 1/91a Acland Street, St Kilda.

4 In the event of complaints by Ms Bowman in relation to the emission of such noise such complaints are to be directed to Mr McMurray of the City of Port Phillip who, upon investigating such complaints, is to invite Mr Patzold to accompany him during such investigations.

4 The council alleges that neither Ironcroft nor Mr Patzold complied with these orders.[1]

5 On 11 August 2003 the tribunal, constituted by Acting Deputy President Byard, heard the application for a final enforcement order. The proceedings were adjourned to an administrative mention on 11 November 2003, upon Ironcroft and Mr Patzold giving certain undertakings to the tribunal. It seems clear to me that the orders made by the tribunal following the hearing on 11 August 2003, and the undertakings accepted on that day, were intended to replace the earlier interim order made in May 2003. This is indicated by the circumstances and the content of the orders.

6 On 11 August 2003 the tribunal accepted undertakings, on behalf of Ironcroft and Mr Patzold, that any noise generated by the subject site will be in accordance with SEPP N-2 at the nearest affected residential property. The tribunal also accepted an undertaking that no music will be played at the subject site unless the noise generation and amplification system used to play the music is linked to a noise monitor and limiter which is operating and has a number of specific technical specifications. These technical specifications were designed to ensure that, if music noise exceeded SEPP N-2, power to the amplification equipment would be disconnected for 15 seconds. The undertakings also required a commissioning report from an acoustic engineer to be prepared which demonstrates compliance with the SEPP N-2 noise limits. Finally, the undertaking provided that until such time as the device was installed, operational and the commissioning report had been provided, no amplified music noise may be generated at the subject premises so as to be audible within the premises at 1/91a Acland Street, St Kilda with the window shut: these being the premises occupied by Ms Lisa Bowman.

7 The council alleges that Ironcroft and Mr Patzold breached this undertaking given to the tribunal.

8 On 29 August 2003 the council applied to the tribunal for an order that Ironcroft and Mr Patzold be punished for contempt of the tribunal. The initial application specified two charges against Ironcroft and two charges against Mr Patzold. On 19 September 2003 the council made a further application for orders. This application specified three additional charges against Ironcroft and three additional charges against Mr Patzold.

9 The council supported its application by affidavits sworn by Mark Bartley dated 28 August 2003, Steven McMurray dated 29 August 2003 and 10 September 2003, Frank Butera sworn 28 August 2003 and 10 September 2003 and Lisa Bowman dated 1 September 2003. Mr McMurray, Mr Butera and Ms Bowman gave evidence, generally consistent with their affidavit, and were cross-examined. I accept the evidence given in chief by these witnesses.

10 At the conclusion of the evidence called by the council, a submission was made on behalf of Ironcroft and Mr Patzold that there was no case to answer in relation to certain of the charges. For reasons given in a ruling made on 25 September 2003 (which is attached hereto), I found that there was no case to answer in relation to the following charges against Ironcroft:

I made similar rulings in relation to the equivalent charges against Mr Patzold.

11 Ironcroft pleaded guilty to the following charges which, in substance, were that, contrary to the undertaking:

* on 9 September 2003 music was generated which was not in accordance with SEPP N-2;

* on 9 September 2003 Ironcroft permitted music noise to be generated when the amplification system used to generate the music noise was not linked to an adequate or fully operating noise monitor and limiter;

* on 2 September 2003 Ironcroft had failed to provide a commissioning report in relation to the noise monitor and limiter in accordance with its undertaking.

12 Mr Patzold pleaded guilty to the equivalent charges against him.

13 This left the following charges against Ironcroft to be determined:

Similar charges remain to be determined in relation to Mr Patzold.

14 Section 137(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that a person is guilty of contempt of the tribunal if they:

(f) do any other act that would, if the tribunal were the Supreme Court, constitute contempt of that court.

If the Supreme Court makes an order or accepts an undertaking, a person would be in contempt of court if the person, by a wilful act, disobeyed the order.

15 I proceed upon the basis that a deliberate commission or omission which is in breach of an enforcement order of the tribunal, or of an undertaking given to the tribunal, constitutes wilful disobedience unless it is casual, accidental or unintentional.[2].

16 In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, Gillard J usefully set out the matters which a plaintiff must prove to demonstrate a civil contempt of court. In the present context, the significant matters are:

* that the terms of the order are clear, unambiguous and capable of compliance; and

* that the respondent has breached the terms of the order.

17 In Advan Gillard J also observed that, as a general proposition, it is unnecessary to prove that the contemnor committed the breach with an intention to disobey the order. Rather the plaintiff must prove, and prove beyond reasonable doubt, that the act or omission which constituted the breach of the order was deliberate and voluntary. I agree. In the present case, this means that the plaintiff must prove, beyond reasonable doubt, that a respondent deliberately and voluntarily allowed music to be played on the subject premises at a volume that happened to breach the volumes permitted by the orders or undertakings.

18 It is also important to note that when a judge or tribunal is called upon to exercise summary jurisdiction in relation to contempt the judge or tribunal has, what Brooking JA described[3], as

a unique discretion at common law: he may in his discretion decline to adjudge the respondent guilty of contempt, that is, decline to convict, notwithstanding that, as judge of the facts and the law, he is satisfied that a contempt has been committed.

19 I hold that the orders and undertakings relevant to the charges are clear, unambiguous and capable of being complied with. The argument to the contrary seemed to relate to those orders and undertakings which were directed to the volume with which music could be played and how it should be measured. However inconvenient or complex it might have been to ascertain whether noise was audible inside Ms Bowman's premises, with the window shut, or in excess of SEPP N-2, this cannot mean that the orders were unclear, ambiguous or incapable of compliance. If these factors are relevant they are only relevant as to the penalty which should be visited on any contemnor.

20 I am troubled by the charges against Mr Patzold and do not propose to find him guilty of contempt in relation to any of the charges, even those to which he has pleaded guilty. It is true that the orders made in May 2003 were made against both Ironcroft and Mr Patzold. It is also true that the undertakings given to the tribunal in August 2003 were made by both Ironcroft and Mr Patzold. In both instances the tribunal appears to have proceeded on the basis that both Ironcroft Pty Ltd and Mr Patzold were occupiers of the land. However evidence before me would suggest that the subject premises were occupied by Ironcroft, and not Mr Patzold. Mr Patzold was the sole director and controller of Ironcroft. But this does not make Mr Patzold the occupier of the land.

21 Section 114(3) of the Planning and Environment Act 1987 provides that an enforcement order may be made against certain specified persons. These persons include the occupier of the land. They also include any other person who has an interest in the land and any person by whom, or on whose behalf, the use was being carried out. I am not persuaded that Mr Patzold fits any of these categories; nor is this a case where it is appropriate to lift the corporate veil.

22 Hence, even though orders were made and undertakings given in respect of Mr Patzold, which may have been disobeyed, I exercise my discretion not to find Mr Patzold guilty of contempt in relation to any of the charges.

23 Ms Bowman gave evidence that on 26 June 2003, between 10.30pm and 2.00am on the following day, noise from the subject premises was clearly audible inside her premises, with the windows shut. I find Ms Bowman to be a credible witness; and I accept this evidence. Mr Patzold gave evidence that on that date a new band, Bagi and Nina Ferro, performed at the subject premises. He said that on that occasion he used a hand held noise measuring device. His evidence was that the reading was 96 (which I take to be dB(A)) and that he believed that he was permitted to emit noise up to 101 (which I take to be dB(A)) and still comply with SEPP N-2. I am not satisfied that there was a reasonable basis for this belief. The hand-held noise monitor was known to Mr Patzold to be of limited reliability. Moreover it would have been of limited reliability in relation to measurements under SEPP N-2, which must be performed on an octave basis.

24 However, Mr Patzold said that on that occasion he was notified that the noise levels were too loud and that he complied with a request to immediately reduce noise levels. I accept that evidence.

25 Although I am satisfied that Ironcroft deliberately allowed music to be played on the subject premises at levels which were audible within Ms Bowman's premises, with the window shut, and, hence, was in breach of the orders made in May 2003, I exercise my discretion and do not proceed to a conviction for contempt in relation to the noise emitted on this occasion. I am influenced by the fact that Ironcroft, through its director Mr Patzold, turned the music down on this occasion. I am also influenced, although to a lesser extent, by another factor. The order made in May 2003 was complex and left some room for argument as to whether the appropriate noise standard was SEPP N-2 or audibility within Mr Bowman's apartment. This is not to say that the order was ambiguous. It was certainly capable of a clear meaning. But it was not cast in simple, plain language.[4]

26 Ironcroft pleaded guilty to the charge that, on 2 September 2003 and continuing, it failed to provide a commissioning report in relation to the noise monitor and limiter, which failure was in breach of its undertaking contained in paragraph 1(f) in August 2003. I regard this as a relatively minor breach as the commissioning report has subsequently been provided. Further, Ironcroft had limited control over the timing of the provision of this report. Nonetheless, in view of the history of the matter, the time limit contained in the undertaking was intended to be complied with. It would have been open for Ironcroft to have the time limit varied by the tribunal. This opportunity was not taken. However, in all the circumstances and having regard to the apology proffered to the tribunal, this contempt should only attract a fine of $500.

27 These charges relate to a breach of the undertaking, contained in paragraph 1(c) of the August 2003 undertaking, that Ironcroft permitted amplified music noise to be generated whereby the amplification system used to generate the music noise was not linked to an adequately or fully operating noise monitor and limiter. The first of these charges, which related to 28 August 2003, was contested; whereas the second charge of this type, which related to 9 September 2003, was the subject of a guilty plea. However paragraph 1(g) of those orders contemplates a time before the noise monitor and limiter is to be installed, during which music may be played. Accordingly, I do not convict Ironcroft of these charges, notwithstanding its plea of guilty to one of them.

28 The remaining charges relate to breaches of the undertakings contained in paragraphs 1(a) and 1(g) of the August undertakings. In essence these charges relate to the emission of noise which either exceeded SEPP N-2 or was audible in Ms Bowman's premises. The charges relate to 19 August 2003, 28 August 2003, 29 August 2003, and 9 September 2003.

29 Based on the evidence of Ms Bowman, Mr McMurray and Mr Butera, I find the charges proved. Nothing was put before me on behalf of Ironcroft to cast any doubt on this evidence.

30 Mr Patzold gave evidence to the general effect that he did not realise that he was in breach of the undertakings. Even if this evidence is to be accepted, I hold that this does not mean that Ironcroft can avoid being convicted of contempt: Ironcroft deliberately allowed its premises to be used for the playing of loud music, did so in the knowledge that it had given undertakings to the tribunal that such music would not exceed certain specified levels, and the music noise did exceed those levels. In any event, I am not satisfied that Mr Patzold believed, on reasonable grounds, that the noise which was being emitted complied with the level specified in the undertaking. For the reasons given earlier, he seemed to rely on an unreliable hand-held noise monitor, which he knew was not completely reliable.

31 I also reject the defence of honest and reasonable mistake. Even if I was persuaded that Mr Patzold (on behalf of Ironcroft) honestly believed the noise being emitted complied with the relevant limits, I do not find that such a belief was reasonable. Rather the belief was based upon inadequate scientific evidence and inadequate research. I find that it is more likely that Mr Patzold was not really sure whether he was complying with the limits, or not, but allowed the music to be played loudly because it was in Ironcroft's economic interest to do so.

32 Mr Patzold has now apologised to the tribunal for Ironcroft's failure to comply with the undertakings. Moreover it would appear that steps have been taken to ensure compliance with the undertakings and with a replacement enforcement order which I announced on 26 September 2003. These matters are clearly relevant to penalty and I have taken them into account. I place some, but not great, weight on the apology. It would have been weightier if it had been proffered earlier. But the lack of any evidence of an on-going failure to comply with the enforcement order is significant.

33 It is important that enforcement orders of this tribunal are complied with. The same can be said of undertakings given to the tribunal. Nonetheless I accept that a fine should not be imposed for a contempt unless this is required by the circumstances, particularly by the need to provide a specific or general deterrence for the conduct in question. But this is a case where deterrence - both specific and general - is required. The playing of loud music, in breach of the law, can be annoying and disrespectful of the interests of others. It is important that orders of this tribunal are obeyed.

34 I accept the submission made by Mr O'Brien, on behalf of Ironcroft, that there is some tension between music venues and the occupants of dwellings, particularly in activity centres. I accept that this will often need to be addressed by ensuring that dwellings are constructed in a manner which protects the dwellings from the adverse effects of music noise. I also accept that a certain amount of tolerance will be required by residents who chose to live in dwellings near music venues in activity centres. But these cannot excuse Ironcroft's conduct in the present case. Rather they are matters which Ironcroft should have thought of when it obtained its permit, when it decided not to appeal against the conditions of the permit, and when it came before the tribunal in relation to the interim enforcement order and the enforcement order.

35 In the circumstances, on each occasion when Ironcroft allowed its premises to be used, in breach of the undertaking, to exceed the noise levels in SEPP N-2 I impose a fine of $2,000. I impose no fine in relation to noise levels being audible in Ms Bowman's premises when this occurred on the same day as a SEPP N-2 offence. On the days when noise was emitted, in breach of the undertaking, so as to be audible in Ms Bowman's premises (not involving a SEPP N-2 offence) I impose a fine of $1,000.

36 It is usual, or at least common, for a contemnor found guilty of contempt to pay the costs of the prosecutor, often on a solicitor/client basis. On the other hand, if the proceeding is unsuccessful, the respondent may recover his or her costs. In the present case Mr Patzold has not been convicted of contempt. However I do not accept that his costs should be paid by the council. He was represented in conjunction with Ironcroft, which has been found guilty of contempt. He has not been convicted as a matter of discretion. He agreed to the undertakings in May and August. He is not an innocent party.

37 Ironcroft should be required to pay the council's costs of prosecuting it, but only on a party/party basis. This is a case which should not attract the general rule contained in section 109 of the VCAT Act. It is a very special kind of case which makes an award of costs fair having regard to paragraphs (d) and (e) of section 109(3). Party/party costs are appropriate for several reasons. The council has not succeeded in all its charges against Ironcroft and no costs are to be awarded to Ironcroft in relation to these charges. By ordering the costs to be paid by Ironcroft to be on a party/party basis, rather than a solicitor/client basis, takes this matter into account. Further, the awarding of costs on a party/party basis tends to encourage discipline in the provision of legal services. This is desirable, especially in matters before this tribunal.

38 In order to facilitate the calculation of costs I also order that the total costs incurred in relation to the bringing and prosecuting of contempt charges against Ironcroft and Mr Patzold are to be calculated on a party/party basis, then Ironcroft is required to pay 90% of those costs. This order is designed to make the calculation of costs practicable and to avoid further argument about costs. The figure of 90% is intended to reflect the fact that the additional costs that would have been incurred by bringing charges against Mr Patzold, in addition to against Ironcroft, are relatively modest.

[1] It is unnecessary to determine whether orders 3 and 4 were strictly speaking orders or were merely undertakings. It is well established that the giving of an undertaking to a court or a tribunal is equivalent to an injunction or order of that court or tribunal: see National Australia Bank Limited v Bond Brewing Holdings Limited [1991] VicRp 31; [1991] 1 VR 386, at 583.

[2] This was the test applied by the High Court of Australia in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. I note that in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J distinguished the Mudginerri case and observed that, at least in some circumstances, casual, accidental or unintentional disobedience with an order may still constitute contempt. Having regard to my findings, it is not necessary to explore this issue in this decision.

[3] Re Perkins; Mesto v Galpin [1998] 4 VR 495, at 514.

[4] If there is to be a lesson to be learned, it is that the tribunal must be wary about accepting poorly drafted orders put forward by the parties as consent orders. Members of the legal profession owe a duty to the tribunal to prepare minutes of consent orders in a form which are lawful, plainly expressed, concise, certain and logical.