Queanbeyan City Council v Sun - [2013] NSWLEC 64 - NSWLEC 2013 case summary — Zoe

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Queanbeyan City Council v Sun

[2013] NSWLEC 64

Land and Environment Court (NSW)|2013-05-08|Before: Biscoe J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-05-08

Before

Biscoe J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Judgment 1The respondent, Mr Kuan Ren Sun, has been found guilty of contempt for disobeying orders made by the Court, as charged in the applicant Council's statement of charge: Queanbeyan City Council v Sun [2013] NSWLEC 6. He is now before the Court for sentencing.

[2]

Use of the premises 2The respondent owns the land described as Lot 138 in Deposited Plan 8732 and known as 28 Aurora Avenue, Queanbeyan (the Premises). 3The respondent owns and conducts a business trading as Action Fabrication and Welding (the Business), the principal activity of which is steel fabrication. The respondent conducts the Business from the Premises. 4The use of the Premises for the Business has been ongoing since at least September 2004. 5On 2 April 2012 the Court ordered the respondent to comply with various specified conditions of the "modified consent" (order 4) and various specified conditions of the "second consent" (order 5). In each case, the period permitted for compliance to be achieved was 90 days, that is, by 2 July 2012. 6The modified consent was granted on 14 July 2004: Queanbeyan City Council v Sun [2012] NSWLEC 70 (Class 4 judgment) at [4]. It authorised the erection of an industrial building and the use of the premises for industrial engineering purposes. 7The second consent was granted on 23 November 2004: Class 4 judgment at [4]. This consent authorised the demolition of an existing building on the premises, an extension to the factory building (being the factory building erected pursuant to the modified consent) and the rearrangement of parking arrangements at the rear of the premises. 8Since at least September 2004 the premises have been used for industrial purposes (steel fabrication). That use has been carried on in circumstances where the conditions of the modified consent and second consent have not been complied with: Class 4 Judgment at [5]. The matter came to Council's attention in November 2009, but having regard to the nature of the non-compliances, it is obvious that the non-compliances have been throughout the period of the use; for example, the façade of the building was left unpainted. An order under s 121B of the Environmental Planning and Assessment Act 1979 served by the Council on the respondent on 5 May 2010 to effect compliance was not complied with: Class 4 Judgment at [6]. It was the continued non-compliances that led to the making of the Court's orders in the Class 4 proceedings on 2 April 2012.

[5]

Purpose of sentencing 16The primary purpose in punishing a respondent who disobeys a court order is to enforce the order 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: Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46, (1986) 161 CLR 98 at 107. 17Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 at 320-321 is sometimes cited for the proposition that the Crimes (Sentencing Procedure) Act 1999 applies to sentencing in contempt matters including for disobeying court orders. However, that was a case of criminal contempt and was not concerned with contempt for disobeying a court order. Subsequently, the High Court clarified that disobeying a court order is a civil contempt, unless it is alleged that the contempt was contumacious or the contempt proceeding was only to serve the purpose of punishing a past breach, and does not serve a remedial, coercive or deterrent purpose: Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525, 530-534, 538-539; Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 at [130], [141]. The contempt in the present case is a civil contempt. The Crimes (Sentencing Procedure) Act 1999 is concerned with sentencing of an "offender", which it defines as "a person whom the court has found guilty of an offence": s 3. I do not think that a civil contempt is an "offence". However, as I observed in Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23], apart from procedural differences the distinction between criminal contempt and civil contempt is largely illusory because in both cases the charges have to be proved beyond reasonable doubt and the usual outcome is punishment. Therefore, in my opinion, although the Crimes (Sentencing Procedure) Act does not apply directly to sentencing for civil contempts, its sentencing factors apply by analogy. 18The following address relevant sentencing factors identified in that Act and in the frequently cited Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 (Dunford J).

[7]

Reason for contempt 22For the respondent it is submitted that his breach of the Court's orders are attributable to financial difficulties and also to cultural attitudes (he is said to be Chinese, with limited command of the English language). 23On or about 24 January 2011, following service on the respondent of the summons in the Class 4 proceedings upon him, the respondent identified, as a reason for not complying with the modified consent and the second consent, a "financial shortage which I can explain or prove if necessary". Evidence of this kind was adduced at the sentencing hearing. In relation to the respondent's business, financial statements for the financial years from 2008 to 2012 (the ones for 2012 are drafts) indicate that: (a)the turnover of business has greatly declined from about $1.8 million in each of 2009 and 2010 to about $377,000 in 2012; (b)net profits for the business have greatly declined from about $134,000 in 2008 to about $16,800 in 2011 and $4,000 in 2012; (c)as at 30 June 2012, the surplus of assets over liabilities was about $185,000; (d)between 2008 and 2012 there has been a very large financial drain on the business represented by legal fees in excess of $250,000. It is said, and I am prepared to accept, that these are costs of defending Supreme Court proceedings brought by a construction company against the respondent alleging negligent carrying out of work, but that the plaintiff in those proceedings has since gone into liquidation and the Supreme Court proceedings have been terminated. Thus, this financial drain now lies in the past. 24A recent bank statement for the respondent's business shows cash in the bank of about $27,000 and another recent bank statement shows that the respondent has an available line of credit (to the extent it has not been drawn down) of about $442,000. 25It appears that this year the respondent has incurred expenses of about $76,000 in order to comply with the orders of the Court. He estimates that he will have to expend about another $10,000 in order to achieve total compliance (on the basis that the respondent himself will do the fencing work and some of the other work). 26I accept that since about 2010 the respondent's business has greatly declined and has been under financial pressure. Nevertheless, on the evidence, I am not satisfied that his financial resources have been insufficient to comply with the orders of the Court. 27If it be the case that (as submitted) failure to comply with the conditions of the development consent and the Court's orders may be attributable to cultural difficulties (for which there is no evidence), I do not accept that this provides any excuse for the failure and breach period. 28I do not go so far as to say that the contempt was committed for financial gain, but I think that the respondent preferred his financial interests to those of his obligation to comply with the orders of the Court.

[14]

Comparable cases 38There is a principle of even-handedness in sentencing, however caution must be exercised in comparing the sentences passed in different factual contexts. 39I take into account the cases I identified in Burwood Council v Ruan [2008] NSWLEC 167 at [26]-[28], which provide a guide to the range of penalties imposed for contempt in cases of wilful contempt, generally in the range of $7,500-$50,000, with the higher penalties (generally over $20,000) being imposed in cases involving environmental harm or the risk of environmental harm. 40Palerang Council v Banfield (No 2) [2012] NSWLEC 158 (Pepper J) concerned disobedience to orders to cease the use of, and to demolish, an unlawfully erected shed used as a residence. The respondent entered a late plea of guilty on the day of hearing of the contempt motion, and advanced evidence of financial hardship. There was no actual environmental harm. At the time of sentencing, it appears the contempt had been ongoing for about 6 months, and continued. A fine of $16,600 and a monthly periodic penalty of $2,000 was imposed, with the periodic penalty discharged if the contempt was discharged within a further three months. The cases discussed in Banfield (No 2) at [128]-[131] identified principal fines generally in the range $12,000 to $20,000. 41In Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 (Sheahan J) concerned breach of undertakings given to the Court and consent orders. Both sought to achieve compliance with development consent conditions for a site used for pre-cast concrete manufacture. There was no environmental harm from the contempts, but the business, and the use, continued despite the failure to bring itself into compliance with the requirements of the consent, and its undertakings. The respondent there enjoyed and profited from the use for almost three and a half years. The Court was satisfied that the financial benefits to the respondent company were substantial. A fine of $80,000 (including discounts for absence of harm, and plea) was imposed in relation to the breach of undertakings and a fine of $48,000 (after similar discounts) was imposed for the breach of the consent orders.