PORTER -v- STEINBERG [No 2] [2019] WASC 473 (24 December 2019)

(c) Mr Steinberg to have liberty to apply to set aside the order in (b) upon demonstrating to the court that the necessary work and acoustic testing had been undertaken;

(e) Messrs Steinberg and Hams to pay the applicant's costs fixed in the sum of $4,109.37; and

(f) a programme of the steps required to determine the penalty to be imposed on Mr Hams.

1. These reasons explain why I made the orders outlined above. They should be read with the reasons of 14 August 2019 in which I recited the factual background in some detail.[2] In the course of outlining the recent procedural history I will bring the factual narrative up to date.

1. The applicant's originating motion was set down for hearing on 31 July 2019. On that date Mr Steinberg was represented by counsel who entered a plea of guilty on his behalf (a guilty plea had been foreshadowed at a directions hearing on 25 July 2019). Mr Hams did not appear. An order was made requiring Mr Steinberg to undertake remedial work to the flooring in unit 2 in order to purge the contempt. I also ordered that upon completion of the remedial work Mr Steinberg was required to engage an acoustic engineer to undertake testing of the flooring to ensure noise levels in the applicant's unit were within an acceptable range.
2. Mr Steinberg was confident that the necessary remedial work could be undertaken by the end of August 2019. He undertook to vacate the unit to minimise the noise disturbance to the applicant in the intervening period. The matter was adjourned to 13 September 2019 to enable the parties to make submissions on the question of penalty in the expectation that the remedial work would have been completed satisfactorily by that date.
3. At the hearing on 31 July 2019 the applicant's counsel pressed for the imposition of a daily penalty on Mr Steinberg until he complied with the SAT order. In the light of the assurances from Mr Steinberg that the work would be undertaken I declined to impose a daily penalty.
4. On 6 September 2019 Mr Steinberg filed and served a notice to the effect that he would be representing himself in the future.
5. At the request of the parties and in the circumstances outlined in [11] below the (penalty) hearing listed for 13 September 2019 was adjourned. On 13 September 2013 orders were made by consent (administratively) in the following terms:

In these orders the term 'SAT Order' means the order made by the State Administrative Tribunal on 15 June 2018 in the following terms:

"By 5 October 2018, [the first and second contemnors] shall ensure that all floor space within Lot 2 on Strata Plan 9002, other than the kitchen, laundry, lavatory and bathroom, is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor, occupier or other resident of Lot 1 on Strata Plan 9002."

1. The First Contemnor by consent, within 7 days of the date of these orders undertakes to complete further remedial work in the 'north facing room adjacent to the kitchen' referred to in the report of Mr George Watts dated 11 September 2019 to ensure the flooring produces a noise level of no more than 55dB in Lot 1 on Strata Plan 9002.
2. On the completion of the remedial work, the First Contemnor is directed to engage, at his own expense, Mr George Watts or another suitably qualified expert from Herring Storer Acoustics to undertake testing and certification of the level of impact isolation provided by the flooring of Lot 2 on Strata Plan 9002, and to provide to the Applicant and the Court with certification showing that the level of impact isolation produces a noise level of no more than 55dB.
3. If compliance with Order 1 is not demonstrated by provision of the certification referred to in Order 2 by 20 September 2019, the First Contemnor is to pay a daily fine of $100 per day for each day in the period beginning on 13 September 2019 and ending on the date on which the First Contemnor complies with Order 1.
4. The First Contemnor file and serve any affidavit evidence upon which he wishes to rely on the issues of penalty together with an outline of written submissions on the issue of penalty and costs by 4:00pm on 20 September 2019.
5. The Applicant file and serve any further affidavit evidence and any outline of written submissions on the issue of penalty and costs by 4:00pm on the day prior to the hearing as to the punishment of the First Contemnor for contempt.
6. The matter be adjourned to 11:00am on 1 November 2019, for submissions as to the punishment of the First Contemnor for contempt.
7. There be liberty to apply.
8. The circumstances that led to the adjournment of the hearing on 13 September 2019 and the making of the consent orders were as follows:

(a) Mr Steinberg had completed some of the required remedial work.

(b) On 10 September 2019 Mr George Watts, an acoustic engineer, undertook sound transmission testing known as 'impact isolation testing' in unit 2. Three areas were tested: the living area, the bedroom area and what was described by Mr Watts as a north facing room adjacent to the kitchen - 'the north facing room'. The flooring in the living area was 'vinyl plank', the bedroom area was carpeted and the north facing room was tiled. The tiled floor in the north facing room did not comply with the requirements of the SAT Order or the order made on 31 July 2019.

(c) On 11 September 2019 Mr Steinberg sent a copy of a report prepared by Mr Watts to the applicant's counsel under cover of an email in which he stated:

You will note that the area that comprises the kitchen and laundry (not subject to the court orders, does not comply.

If your client is amenable to an adjournment by consent I will not argue the case regarding the kitchen and laundry and will by consent have that small area covered as well.

I have already purchased the new flooring for this area it was just not layed (sic) due to constraints of storage of furniture required to moved (sic) during the job.

As mentioned I just wish to have this matter resolved and for [the applicant] to have his peace and quiet.

The references to the kitchen and the laundry and the 'small area' were references to the area described in Mr Watts's report as the 'north facing room'.

1. On 1 October 2019 the applicant's counsel sent an email to Mr Steinberg enquiring whether Mr Steinberg had undertaken the further remedial work and, if so, when she could expect to receive the result of the compliance testing. There was no response from Mr Steinberg.
2. On 31 October 2019 the applicant filed an affidavit sworn by him disclosing that Mr Steinberg had not complied with the SAT Order in respect of the north facing room. The applicant provided a minute of proposed orders concerning the penalty to be imposed for the contempt. The applicant also sought to recover his costs and disbursements of the proceedings in the sum of $6,175.
3. On 1 November 2019 Mr Steinberg sent an email to my Associate, copied to the applicant's counsel, in the following terms:

I am currently in London on emergency travel, and cannot make the hearing tomorrow.

I do not agree to the proposed minute,

I attach a minute to which I agree.

I note that I undertake not to use the area that has yet to have the floors changed, in the unit until the work, in the kitchen and laundry area, which is NOT SUBJECT to the SAT order, but to which I have agreed to rectify, until it is rectified. The rectification work, the subject of the SAT order has been completed and the report has been provided to the other side.

Would you please apologise to the Court and to His Honour and bring this email to the courts attention.

1. It was apparent from this email that Mr Steinberg denied that he was required to rectify the north facing room as part of the SAT order. No further information was provided about the 'emergency travel' that Mr Steinberg was required to undertake. Mr Steinberg proposed that the following orders should be made without his attendance at the hearing:
   1. It is declared that the First Contemnor did not comply the Consent order of 13 September 2019.
   2. The First Contemnor is directed, forthwith, to undertake further remedial work necessary to comply with the consent order of 13 September 2019.
   3. The First Contemnor must, by 1 December 2019, pay the Applicant's costs and disbursements fixed in the sum of $1,500.
2. At the hearing on 1 November 2019 the applicant's counsel pressed for penalty to be determined. I declined to do so in Mr Steinberg's absence when the reason for his overseas travel was unclear.
3. On 1 November 2019 I made the following orders:
   1. The First Contemnor file and serve an affidavit by 14 November 2019 explaining why he did not attend the hearing on 1 November 2019 and, if that explanation is that he was required to travel to London on an emergency basis, annexing documents recording the dates on which he purchased tickets for such travel.

1. The First Contemnor file and serve any affidavit evidence upon which he wishes to rely on the issues of penalty together with an outline of written submissions on the issue of penalty and costs by 4:00pm on 18 November 2019.
2. The matter is adjourned to 10:00am on 21 November 2019 for submissions as to the punishment of the First Contemnor for contempt ...
3. There be liberty to apply.
4. On 1 November 2019 Mr Steinberg sent an email to my Associate requesting a copy of the orders that had been made and my Associate provided the extracted orders as requested.
5. Mr Steinberg did not comply with the orders made on 1 November 2019 requiring him to file and serve an affidavit and submissions.
6. On 20 November 2019 the applicant filed a further affidavit accompanied by written submissions. The evidence disclosed that the remedial work in the north facing room had not been completed. The evidence also disclosed that Mr Steinberg had been advertising unit 2 for short term stays on 'Airbnb.com.au' while the flooring remained non-compliant with the SAT order.
7. On 20 November 2019 at 6.21 pm Mr Steinberg sent an email to the court attaching an outline of written submissions. Although no affidavit was provided, Mr Steinberg stated that his reason for not attending the hearing on 1 November 2019 was that he 'was required to travel overseas to attend a number of job interviews'.
8. At the hearing of 21 November 2019:

(a) Counsel for the applicant pressed for an order imposing a daily fine of $200 until Mr Steinberg complied with the SAT order.

(b) Mr Steinberg contended that the SAT Order did not require him to undertake any remedial work to the flooring of the north facing room. He said that he had purchased the required flooring materials and that he simply required someone to lay them.

(c) I told Mr Steinberg that he was required to undertake the remedial work to the flooring in the north facing room. I expressed my concern to Mr Steinberg that he had still not completed the work and that his approach to the matter was such that I was required to give consideration to the imposition of a custodial penalty.

(d) I reserved my decision on penalty to 12 December 2019 and informed Mr Steinberg that if he filed evidence that he had completed the outstanding remedial work in the intervening period and the acoustic testing established compliance with the SAT Order then I would take that into account in determining penalty.

1. On 11 December 2019 Mr Steinberg filed and served a further affidavit and supplementary submissions as to penalty. In his affidavit Mr Steinberg deposed (among other things) that:

(a) he had undertaken the remedial work in the north facing room and he attached photographs to his affidavit that purported to show new flooring laid in the north facing room - while the evidence was not entirely clear it would appear that the work was not undertaken until 8 December 2019;

(b) he was experiencing financial difficulties and was unable to pay for the acoustic testing to be completed until some time in January 2020;

(c) his previous employment had been terminated on 20 October 2019;

(d) 2019 had been a 'tumultuous year' as his business had gone into liquidation, his domestic relationship with Mr Hams had broken down and his employment had been terminated;

(e) the financial and emotional stress meant that he had not been thinking straight and, in effect, had led him to make bad decisions in relation to the present matter and he apologised to the applicant and to the court;

(f) he had forgotten the requirement that he attend court on 1 November 2019 when he booked to travel to the United Kingdom at the end of October 2019 to attend job interviews and apologised for 'misleading the court in this regard';

(g) he did not have the remedial work undertaken in the north facing room because of logistical reasons and because he did not think the SAT Order required him to do so;

(h) 'the majority of the contempt' was purged 'at the first available opportunity' following the court hearing in July 2019;

(j) Mr Hams had not engaged with him in relation to achieving a property settlement and had made no financial contribution towards the steps required to purge the contempt.

Parties' submissions on penalty Applicant's submissions

1. The applicant's submissions were relatively straightforward. On the applicant's case Mr Steinberg had failed to purge the contempt to which he had pleaded guilty and the applicant was not satisfied that the work Mr Steinberg said had been undertaken in the north facing room was effective to comply with the SAT Order in the absence of acoustic testing.
2. The applicant submitted that this court should exercise its power to impose a daily fine until there was evidence that the contempt had been purged.
3. The applicant further submitted that by making an order that there be liberty to apply, Mr Steinberg could apply on short notice to the court if the contempt was purged to lift the daily penalty.
4. The applicant took issue with the matters raised by Mr Steinberg in mitigation.
5. The applicant submitted that he should be entitled to his costs including pre-proceedings costs. I refer to the submissions made by the applicant in relation to costs in a later section of these reasons. For present purposes it is sufficient to note that the applicant's costs of these proceedings are largely confined to disbursements. This is because the applicant has been represented by counsel on a pro bono basis. But for the pro bono assistance provided by the applicant's counsel the applicant's costs would have been substantially more than the sum claimed.

1. Mr Steinberg relied on his written outlines of submissions filed on 20 November and 11 December 2019. The principal submissions made by Mr Steinberg may be summarised as follows:

(a) He pleaded guilty and accepted the facts alleged by the applicant.

(b) He was advised by his builders that the sound travelling via the renovated flooring would be no different to the previous flooring. He did not set out to cause harm to the applicant.

(c) The contempt involved a 'small element of public risk' that did not objectively involve a serious public risk and therefore the court's need to vindicate its authority and the requirement for general deterrence could be satisfied by a less severe penalty.

(e) He had been under considerable emotional and financial stress and this adversely affected his judgment with respect to the contempt.

(f) He had no prior convictions for contempt and apart from a conviction for a traffic offence in 1999 had no prior convictions.

(g) His financial circumstances were such that even a small fine would have a real adverse effect on him.

(h) As he had purged his contempt there was no need for the court to impose a sentence that operated as specific deterrence.

(i) He had agreed to pay a proportion of the applicant's costs.

(j) The court is entitled to consider that the public interest has been vindicated by the bringing of these proceedings and the publication of the 14 August 2019 reasons for decision.

1. By O 55 r 7(1) of the Rules of the Supreme Court 1971 (WA) the court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine.
2. An order for committal may be suspended for such time or on such conditions as the court sees fit.[3] A fine may be imposed either as a lump sum or as a daily penalty. A daily penalty may be appropriate as a coercive means of encouraging the contemnor to purge their existing contempt but not as an anticipatory punishment for future default.[4] As Gibbs CJ, Mason, Wilson and Deane JJ observed in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd:[5]

There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end.

1. In Re Colina; Ex parte Torney,[6] Hayne J observed that the 'cardinal feature' of the power to punish for contempt was the 'exercise of judicial power by the courts, to protect the due administration of justice'. The importance of this cannot be understated, as the majority observed in AMIEU v Mudginberri:[7]

Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the applicant, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed, (1983) say, at p 3:

If a court lacked 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.

1. The determination of the appropriate punishment for contempt is entirely a matter within the discretion of the court. There is no maximum penalty applicable.[8]
2. The Sentencing Act 1995 (WA) does not apply to a person being punished for contempt.[9] In deciding the appropriate punishment for the contemnor, however, the court will look to factors ordinarily relevant to the punishment of criminal offences generally, and the offence of criminal contempt in particular.[10] These relevant principles include the principles relating to manifest excess,[11] and that a sentence of imprisonment is a sentence of last resort.[12]
3. The authorities identify nine relevant matters usually taken into account in considering the appropriate punishment for contempt by disobeying a court order:[13]

(d) whether the contemnor has received or tried to receive a benefit from the contempt;

(e) whether there has been any expression of genuine contrition by the contemnor;

(f) the character and antecedents of the contemnor;

(i) the need for denunciation of contemptuous conduct.

1. Where disobedience of an order amounts to wilful defiance the court may consider this as an aggravating factor.[14]
2. It is difficult to discern any substantial pattern in contempt sentencing which could provide a 'meaningful yardstick' by which to measure the appropriate sentence in this case.[15] The breadth of the circumstances giving rise to contempt mean there is no tariff.[16]
3. Not all deliberate or wilful breaches of a court order will attract a custodial sentence, but the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court.[17]
4. In assessing an appropriate fine the court may take into account the financial impact that will be visited upon the contemnor by the making of an adverse costs order.

1. The conduct to which the penalty is directed is the contempt specified in the originating motion - Mr Steinberg's failure to comply with the SAT Order. Mr Steinberg has failed to comply with this court's orders on a number of occasions in the course of these proceedings. Whilst those matters are unfortunate and they do not reflect well on Mr Steinberg they were not the subject of the motion for contempt. The issue that was required to be determined was confined solely to the penalty to be imposed for failure to comply with the SAT Order.[18]
2. At the hearing on 12 December 2019 there was an element of uncertainty as to whether Mr Steinberg had complied with the SAT Order. He contended he had done so and the photographic evidence adduced by him provided at least some support for that contention. Not unreasonably the applicant was not prepared to accept Mr Steinberg's evidence and required proof in the form of a report from an acoustic engineer that there had been compliance with the order. In my view, however, the facts by reference to which the sentencing discretion had to be exercised were established with sufficient certainty to enable a sentence to be imposed on Mr Steinberg. To the extent to which there was an element of uncertainty that the remedial work had been undertaken in the north facing room, in my judgment, this presented an issue best addressed by conferring on the applicant the right to enter unit 2 and undertake any necessary remedial work and testing at Mr Steinberg's expense with the expenses being a charge on Mr Steinberg's assets. This constituted an incentive to Mr Steinberg to have the testing undertaken at his own expense before the authority conferred on the applicant commenced.

1. In my decision of 14 August 2019 I observed that the conduct of Mr Steinberg in failing to comply with the SAT order from the date that order was made to the date of the hearing on 31 July 2019 was a serious example of contempt.
2. Mr Steinberg's contempt involved a wilful and defiant refusal on his part to comply with the clear requirements of the SAT Order. I do not accept that Mr Steinberg did not understand or did not appreciate the requirements of the SAT Order. Mr Steinberg sought to avoid the requirements of the SAT Order by placing rugs on the floor of unit 2. This was a manifestly inadequate approach to compliance. When the applicant complained that there had been no abatement in the noise Mr Steinberg's response was to the effect that he would not do anything more unless ordered to do so by a court.
3. Mr Steinberg's communications with the applicant disclosed a disregard for his obligation to comply with the SAT Order and a disregard for the applicant's welfare.
4. The SAT has as its main objective the resolution of disputes in a fair manner according to the merits of the case. In doing so the SAT seeks to act speedily and with as little formality and technicality as possible in order to minimise the costs to parties.[19] Those objectives are significantly undermined if parties defy orders made by the SAT. Those objectives are also undermined if a successful party is forced to approach this this court to enforce the orders of the SAT by contempt proceedings. In my view these factors add to the seriousness with which this court should regard Mr Steinberg's contempt.
5. I accept that the seriousness of Mr Steinberg's contempt is mitigated by the remedial work that he has undertaken. The mitigatory effect is limited, however, by the fact that the work was not undertaken until after Mr Steinberg had pleaded guilty and even then, despite the accruing daily penalty to which Mr Steinberg had agreed, he did not undertake the required work in the north facing room until days before the hearing on 12 December 2019.

1. It is convenient to deal with these factors together. Mr Steinberg is well educated having obtained a degree in law and a Graduate Diploma in Legal Practice. Mr Steinberg was employed at a law firm (albeit not as a legal practitioner). The terms of the SAT Order were clear and capable of being complied with.
2. I accept that Mr Steinberg did not set out to cause the noise problem and that it was an unfortunate consequence of the renovation work to unit 2. That said, once the problem had arisen and the SAT Order had been made I find Mr Steinberg's conduct was motivated by a desire to avoid spending the money on remedial works coupled with the belief that the applicant would not have the resources and determination to enforce compliance.
3. The fact that Mr Hams was also bound by the SAT Order and failed to comply with it does not afford Mr Steinberg any mitigation.
4. It is difficult to understand Mr Steinberg's conduct in the period that followed his consent to the orders made on 13 September 2019. To fail to undertake the remedial work in the north facing room after consenting to an order that provided for a penalty of $100 for each day the work was not undertaken shows a remarkable lack of judgment in Mr Steinberg's management and protection of his own interests. I infer from this conduct and from having heard from and observed Mr Steinberg on the two occasions that he has represented himself at hearings before me that the unfortunate events that have befallen him in his personal and work life may have contributed, in part at least, to his failure to direct himself at a much earlier date to the need to comply with the SAT Order.
5. For completeness I record that I do not accept that Mr Steinberg was confused about or misunderstood what was required by the SAT Order. He was guided by what he would have liked the SAT Order to provide rather than by what it actually provided.

1. By not complying with the SAT Order Mr Steinberg sought to avoid the financial burden of compliance. Ultimately he was unsuccessful.

1. Mr Steinberg's guilty plea coupled with his admission of the facts relied upon by the applicant are indicative of remorse and contrition on his part but the mitigatory benefit is limited by three matters. First, the lateness of the plea; second, Mr Steinberg's delay in attending to the flooring in the north facing room; and third, the fact that the evidence relied upon by the applicant was overwhelming - the guilty plea was an acknowledgment of the inevitability of a finding of guilt.

1. I have already referred to Mr Steinberg's educational achievements. He is 42 years old. Apart for the conviction for a road traffic offence to which I have already referred he has a prior good character.
2. The evidence of Mr Steinberg's financial circumstances was limited, general in nature and somewhat contradictory.
3. In an affidavit sworn on 31 July 2019 Mr Steinberg deposed that: he was the co-owner of unit 2 with Mr Hams (other evidence establishes that they own unit 2 as tenants in common with Mr Steinberg having a 70% interest and Mr Hams a 30% interest); that the value of unit 2 was approximately $840,000; and that the mortgage debt secured against the property was approximately $570,000. Mr Steinberg deposed that he owned a car worth approximately $15,000. In July 2019 Mr Steinberg's annual salary inclusive of superannuation was $100,000. He paid approximately $20,000 annually towards the cost of his children's education.
4. I accept that the employment held by Mr Steinberg when he appeared before the court on 31 July 2019 was terminated in October 2019. Mr Steinberg deposed that he had secured a casual position but he did not depose to the details of his income from that casual position. He did not provide the court with any further break down of his assets and liabilities although he stated that he was indebted to creditors of the business with which he was associated, which is now insolvent, and that a demand for payment of over $200,000 had been made in respect of a guarantee given by him. No evidence of other indebtedness was provided.
5. Ordinarily an inference might be drawn from Mr Steinberg's agreement to the order imposing a daily penalty of $100 contained in the 13 September 2019 orders that Mr Steinberg was in a sound financial position. I am not confident that the inference arises in this case. Alternative inferences are either that he yielded to pressure from the applicant to agree to a daily penalty but thought that he would have the remedial work completed by 20 September 2019 so that the penalty would not be activated or simply that he had no intention of fulfilling his obligation to pay the daily penalty.
6. The evidence does not enable me to make any findings with any degree of confidence about Mr Steinberg's financial position. My impression is that Mr Steinberg is experiencing financial difficulties but it is impossible to determine whether these are temporary cash flow difficulties or reflect a more serious deficiency in his assets and liabilities. The impression of financial difficulty is based in part on Mr Steinberg's own evidence and in part on an inference that a person with financial resources would have taken the necessary steps to have avoided the situation that has developed by undertaking the work at a much earlier date.

Personal and general deterrence (including the denunciation of contemptuous conduct)

1. I think it is unlikely that Mr Steinberg will be the subject of contempt proceedings in the future. I am satisfied that Mr Steinberg understands that he cannot disregard orders made in the course of the administration of justice with impunity but I am not satisfied that the need for personal deterrence has been obviated entirely. The delay on Mr Steinberg's part in taking any action to comply with the SAT Order and his failure to undertake the remedial work in the north facing room even when subject to a daily penalty prevent me from being satisfied that personal deterrence is now completely irrelevant as a sentencing consideration.
2. General deterrence and the need for denunciation are, however, of paramount importance. This is especially so in circumstances in which there has been a deliberate failure to comply with an order over a long period in the face of complaints about non‑compliance. Justice cannot be administered effectively if parties to a dispute wilfully disregard the orders of the SAT or the orders of a court with impunity. Such conduct diminishes the faith that the public has and is entitled to have in the administration of justice and ultimately in the rule of law. The court must show that such conduct will be punished so as to discourage others in the community from taking a similar approach to orders.
3. The importance of general deterrence as a sentencing consideration outweighs factors personal to Mr Steinberg including any financial difficulties that he may be experiencing.
4. The publication of my reasons for decision on 14 August 2019 and the publication of these reasons will go some way to achieving the object of denouncing Mr Steinberg's conduct.

1. The daily penalty order made by consent on 13 September 2019 generated a penalty of $9,000 (90 days x $100). In my judgment the interests of justice were best served by vacating the daily penalty order and imposing a punishment in respect of Mr Steinberg's contempt in the light of all the circumstances known to the court on 12 December 2019. In so doing I exercised the court's inherent jurisdiction.

Disposition as to the penalty to be imposed on Mr Steinberg

1. Having regard to the matters to which I have referred I determined that the appropriate penalty was a fine of $12,000. Had Mr Steinberg not adduced evidence that he had undertaken the remedial work in the north facing room then very serious consideration would have been required to a disposition that included a custodial component. In the circumstances the imposition of a fine will serve the relevant sentencing objects.
2. In fixing the fine in the amount of $12,000 I have also had regard to the order for costs made against Mr Steinberg and to which I refer in more detail below. Mr Steinberg sought an order that he have time to pay the fine and I ordered that he have 90 days to pay the fine.

1. I was satisfied by affidavits of service that Mr Hams was served with the originating motion and was notified of the hearing held on 12 December 2019. [20]
2. On 20 November 2019 Mr Hams sent an email to my Associate and stated:

I have received this email but I cannot attend as mentioned before I no longer live at the apartment.

1. Mr Hams cannot avoid the consequences of his failure to comply with the SAT Order by simply not attending hearings.
2. I am satisfied on the evidence adduced by the applicant and referred to in detail in my reasons published on 14 August 2019 that Mr Hams failed to comply with the SAT Order and that the court should declare that to be the case and that he is thereby guilty of a contempt of court.

1. The applicant sought a fixed costs order to cover his out of pocket expenses that included 'pre-proceedings' costs. The applicant did not seek costs on an indemnity basis.
2. The originating motion was filed on 25 March 2019. The SAT order was made on 15 June 2018. The costs claimed by the applicant are set out in the table below:

Atkinson Legal - Advice re "noise issues Lot 2 on SP 9002"

Atkinson Legal - Advice re "noise issues Lot 2 on SP 9002"

Landgate - Fee for Survey and Certificate of Title (Unit 1)

Atkinson Legal - Advice re "noise issues Lot 2 on SP 9002"

Atkinson Legal - Advice re "noise issues Lot 2 on SP 9002"

AAC Process Servers - Service on Mr Hams, and report dated 2 July 2019

AAC Process Servers - Attempted service on Mr Hams (twice), and repot dated 25 September 2019

Maguire and Associates Process Servers - Service on Mr Hams

Maguire and Associates Process Servers - Service on Mr Hams

1. In support of his application for pre-proceedings costs the applicant relies on s 37(1) of the Supreme Court Act 1935 (WA) which provides:
   1. Costs

(1) Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.

1. The applicant also drew attention to O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) which provides:
   1. General rules as to costs

(1) Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.

1. Further, s 10 of the Civil Judgments Enforcement Act 2004 (WA) provides:

The court in which proceedings under this Act are taken in relation to a judgment may make any order as to and incidental to the costs of taking, or the costs in relation to, the proceedings that it could make as to and incidental to costs in civil proceedings before the court.

1. The court has a wide discretion in relation to costs. This extends to making an order, in an appropriate case, for the payment of 'pre‑proceeding' costs.
2. The applicant submits that the costs incurred by him before commencement of these proceedings were necessary to provide a basis for the proceedings. The applicant contends that advice with respect to the original proceedings in the SAT concerning the disturbance created by the change in the flooring in unit 2 was essential to the resolution of these proceedings. The applicant gave evidence that the advice he received was used throughout the dispute including during these proceedings.
3. As can be seen from the table at [72] some of the pre-proceedings costs claimed by the applicant were incurred prior to the SAT Order being made. Specifically the applicant was seeking to recover the cost of legal advice obtained in relation to the (then prospective) SAT proceedings and the cost of acoustic testing before the SAT proceedings were commenced.
4. No order as to costs was made by the SAT and a review of the transcript of proceedings before Senior Member Aitken on 15 June 2018 shows that the issue of costs was not raised. The effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal must bear its own costs unless the Tribunal makes an order otherwise.[21]
5. I reached the conclusion that I should not exercise my discretion to award costs in relation to items 1, 2 and 3 of the table at [72]. My reasons were as follows:

(a) the default position under the SAT Act is that even the successful party to an action will bear their own costs unless the Tribunal makes an order otherwise;

(b) the applicant did not seek an order for payment of his costs of the SAT proceedings in those proceedings;

(c) in my view it would be contrary to the policy identified in s 87(1) of the SAT Act for this court to override the default position in s 87(1) by ordering that costs incurred in relation to the proceedings before the SAT were recoverable in the enforcement proceedings; and

(d) the costs incurred in obtaining legal advice and undertaking acoustic testing although of some use to the applicant in these enforcement proceedings are not properly characterised as costs of taking, or costs in relation to these enforcement proceedings for the purposes of s 10 of the Civil Judgments Enforcement Act 2004 (WA).

1. As Mr Steinberg and Mr Hams are both guilty of contempt by failing to comply with the SAT Order the correct order is that they should pay the costs of these proceedings. In effect their liability will be joint and several.

In these orders:

(a) the term the 'SAT Order' means the order made by the State Administrative Tribunal on 15 June 2018 in the following terms:

By 5 October 2018 [the first contemnor and the second contemnor] shall ensure that all floor space within lot 2 on Strata Plan 9002, other than the kitchen, laundry, lavatory and bathroom, is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor, occupier or other resident of lot 1 on Strata Plan 9002.

(b) the Unit means Lot 2 on Strata Plan 9002, the street address of which is unit 2, 73, Bay View Terrace, Claremont, Western Australia.

(c) 'the north facing room' means the north facing room in the Unit referred to in the report of Mr George Watts dated 11 September 2019 as the 'north facing room adjacent kitchen'.

(d) the applicant's home unit means Lot 1 on Strata Plan 9002, the street address of which is unit 1, 73, Bay View Terrace, Claremont, Western Australia.

IT IS ORDERED THAT:

The first contemnor

1. On and with effect from 10 am on 24 January 2020 and subject to the terms of this order the applicant is authorised to enter upon the Unit for the following purposes:

(a) to undertake acoustic testing to determine whether any remedial work completed by the first contemnor to the flooring in the north facing room complies with the SAT Order; and

(b) to undertake any work to the flooring in the north facing room that may be required to ensure that the flooring in the north facing room complies with the SAT Order.

(c) The applicant may only enter upon the Unit if he has given the first contemnor four days notice in writing of his intention to do so (a notice of intention).

(d) A notice of intention may be given to the first contemnor by affixing it to the door of the Unit.

(e) The applicant is authorised to gain entry to the Unit by force and may enter the Unit on as many occasions as are necessary to execute this order provided that on each occasion the applicant must ensure that the Unit is left in a secure state and provided that on each occasion a notice of intention is given to the first contemnor.

(f) The applicant may be accompanied by such persons whose services are required by the applicant to execute the testing referred in subparagraph (a) or the work referred to in subparagraph (b) provided that the identity of each person is disclosed to the first contemnor in the notice of intention.

1. The first contemnor must pay any expenses incurred by the applicant in relation to Order 1 of these orders and the first contemnor's interest in the Unit and other property owned by him be charged in favour of the applicant to secure such payment.
2. If by 12 noon on 22 January 2020 the first contemnor files and serves an affidavit attaching a certificate from a qualified acoustic engineer certifying that the level of impact isolation provided by the flooring in the north facing room produces a noise level of no more than 55dB in the applicant's home unit the first contemnor may make an application on 24 hours notice to the applicant to have orders 1 and 2 discharged.
3. Order 3 of the orders made on 13 September 2019 is hereby vacated.
4. The first contemnor be fined the sum of $12,000 in respect of his contempt and the first contemnor have a period of 90 days from the date of this order to pay this fine.

1. The second contemnor is guilty of contempt by reason of his failure to comply with the SAT Order.
2. It is declared that the second contemnor did not comply with the SAT Order in the period from 5 October 2018 until at least 30 July 2019, and that during that period as at 30 July 2019, the flooring of the Unit remained non-compliant.
3. The second contemnor file and serve any affidavit evidence upon which he wishes to rely on the issue of penalty to be imposed on the second contemnor together with an outline of written submissions on the issue of penalty by 20 January 2020.
4. The applicant file and serve an outline of written submissions on the issue of the penalty to be imposed upon the second contemnor by 3 February 2020.
5. The hearing be otherwise adjourned to 10 am on 10 February 2020.

1. The first contemnor and the second contemnor pay the applicant's costs fixed in the sum of $4,109.37.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Porter v Steinberg [2019] WASC 291.

[2] Porter v Steinberg [2019] WASC 291 [7] - [30].

[3] Rules of the Supreme Court 1971 (WA) O 55 r 8; Dental Board of Australia v Traianou [2011] WASC 293.

[4] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 113 (Gibbs CJ, Mason, Wilson and Deane JJ).

[5] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (114).

[6] Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [112] (emphasis in original); cited with approval in Construction, Forestry, Mining and Energy Union v Boral Resources (VIC) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [41] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[7] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (107).

[8] Kennedy v Lovell [2002] WASCA 226 [5]; Chief Executive Officer, Department of Environment and Conversation v Szulc [2010] WASC 195 [35]; Dental Board of Australia v Traianou [2011] WASC 293 [39]; Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [3].

[9] Sentencing Act 1995 (WA) s 3(3)(a).

[10] Allbeury v Corruption and Crime Commission [2012] WASCA 84 [218] (Buss JA).

[11] Allbeury v Corruption and Crime Commission [2012] WASCA 84 [218] (Buss JA).

[12] Perpetual Trustees Victoria Ltd v Allen [3] (Beech J) citing s 6 of the Sentencing Act 1995 (WA).

[13] See Wood v Staunton (No 5) (1995) 86 A Crim R 183; Kennedy v Lovell [14]; Perpetual Trustees Victoria Ltd v Allen [3]; Dental Board of Australia v Traianou [41]; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 [101] (Besanko, Wigney and Bromwich JJ); Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 [129] (Tobias JA).

[14] Kazal v Thunder Studios Inc (California) [105] - [106].

[15] Kazal v Thunder Studios Inc (California) [118].

[16] Dental Board of Australia v Traianou [45].

[17] Perpetual Trustees Victoria Ltd v Allen [3].

[18] Sidebottom v The Queen [2018] VSCA 280 [56] - [57] (Priest and Beach JJA & Macaulay AJA).

[19] State Administrative Tribunal Act 2004 (WA) s 9 (SAT Act).

[20] Affidavit of Service of Darren Richard Walker sworn 4 July 2019; Affidavit of Service of Martin Folkes sworn 9 December 2019.

[21] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [46] (Murphy JA).