Queanbeyan-Palerang Regional Council v Banks

Land and Environment Court (NSW)|2024-04-03|Before: Pain J

Solicitors: BAL Lawyers (Applicant) Kim Bolas Legal Group (First Respondent) Not applicable (Second Respondent) File Number(s): 2017/00186533-003

JUDGMENT on contempt of court

Consent orders were made in the Land and Environment Court on 1 December 2017 requiring the First Respondent Mr Banks to remove all motor vehicles, other goods and some structures such as shipping containers from land at 648 Mulloon Road Mulloon (the Premises) by no later than 1 July 2018. A copy of the consent orders is at Annexure A to this judgment. The First Respondent owns the Premises with Ms Williamson the Second Respondent.
A notice of motion and statement of charge of contempt in relation to the First Respondent were filed by Queanbeyan-Palerang Regional Council (the Council) on 11 May 2021. Leave was given on 18 June 2021 to amend the notice of motion and statement of charge to address typographical errors. On 12 October 2023 leave was granted to further amend the notice of motion to add orders 4A, 4B and 4C enabling substituted performance by the Council with the ability to recover costs and a further amendment of the statement of charge was also allowed.
The First Respondent has pleaded not guilty to the contempt the subject of the charge. Whether he is guilty of the contempt is determined in this judgment.

Statutory Framework

Rule 6.3 of the Land and Environment Court Rules 2007 (NSW) provides that Pt 55 (Contempt) of the Supreme Court Rules 1970 (NSW) (SCR) applies to contempt proceedings in Class 4 of the Court's jurisdiction. Part 8 of the Civil Procedure Act 2005 (NSW) and Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) also contain provisions relevant to the enforcement of a judgment of the Court, see UCPR r 40.5. Pursuant to Pt 55 Div 4 r 13 of the SCR, the Court has power to punish a contemnor who is not a corporation by committal to a correctional centre or fine or both. The application is required to be personally served on the Respondents, Pt 55 Div 3 r 9 of the SCR.

Procedural compliance - contempt

No issue was identified by the First Respondent in relation to compliance with procedural requirements for contempt specified in the SCR. For abundant caution I find that the Council has established compliance with service requirements in relation to a number of relevant documents as set out below.
The penal notice and consent orders, notice of motion, statement of charge, affidavit of Mr Harlor dated 25 March 2021, further amended notice of motion, further amended statement of charge and court book were personally served on the Respondents.
The Council relied on the following evidence in relation to service: 1. Affidavit of service of Mr Noonan sworn 16 March 2020 (personal service of penal notice and consent orders on the First Respondent); 2. Affidavit of service of Mr Noonan sworn 24 March 2020 (personal service of penal notice and consent orders on the Second Respondent); 3. Affidavit of Council's solicitor Mr Brickhill affirmed on 20 May 2021 (service of notice of motion and statement of charge on the Respondents); 4. Affidavit of service of Mr Noonan sworn 17 May 2021 (personal service of notice of motion, statement of charge and affidavit of Mr Harlor dated 25 March 2021 on the First Respondent); 5. Affidavit of service of Mr Noonan sworn 17 May 2021 (personal service of notice of motion, statement of charge and affidavit of Mr Harlor dated 25 March 2021 on the Second Respondent); 6. Affidavit of service of Mr Noonan sworn 26 October 2023 (personal service of further amended notice of motion and further amended statement of charge on the First Respondent); 7. Affidavit of service of Mr Noonan sworn 26 October 2023 (personal service of further amended notice of motion and further amended statement of charge on the Second Respondent); 8. Affidavit of service of Mr Noonan sworn and filed 27 March 2024 (personal service of court book on the First Respondent); and 9. Affidavit of service of Mr Noonan sworn and filed 27 March 2024 (personal service of court book on the Second Respondent).

Contempt proceeding commenced

The following events are identified in the Council's unchallenged affidavit evidence. On 15 March 2021 the Council wrote to the First Respondent and provided a copy of the consent orders, a draft notice of motion and statement of charge for the contempt proceeding. The Council asked the First Respondent to show cause as to why the Council should not commence the contempt proceeding and gave him two weeks to respond.
On 24 March 2021 the Council received a call from the First Respondent but otherwise received no response to its letter before the notice of motion was filed.
On 11 May 2021 the Council commenced the contempt proceeding by filing a notice of motion, statement of charge and the affidavit of Mr Harlor affirmed on 25 March 2021.
The contempt proceeding has been adjourned on several occasions since May 2021 to allow opportunities to the First Respondent to comply with the consent orders. The proceeding was adjourned on 21 May 2021, 18 June 2021, 9 July 2021, 10 December 2021, 29 April 2022, 19 August 2022, 2 September 2022, 16 September 2022, 18 November 2022, 24 March 2023, 2 June 2023, 4 August 2023, 1 September 2023 and 22 September 2023. The contempt hearing was finally held on 3 April 2024.

Failure to comply with consent orders by the First Respondent

Council officers have conducted numerous inspections of the Premises since 15 February 2019 as identified in unchallenged affidavit evidence as summarised below. That evidence establishes that the consent orders have not been complied with and is not a matter I understand to be in dispute.
Council officer Mr Harlor inspected the Premises on 15 February 2019 and 7 January 2020. Mr Harlor observed approximately 500-600 cars on the Premises as well as motor bikes, horse floats, boats, caravans, forklifts, tractors and trailers. Mr Harlor deposed that approximately seven shipping containers were on the Premises and that other goods were stored outside the containers including building materials, car tyres and mounds of scrap steel and industrial equipment.
On 22 May 2020 the Council gave notice to the Respondents of its intention to commence the contempt proceeding. The Council's letter to the Respondents stated that: 1. The Respondents were required to comply with the consent orders by 1 July 2018; 2. The Council had inspected the Premises on 7 January 2020 and found there had been little progress made to comply with the consent orders and there was estimated to be more than 600 cars stored at the Premises; 3. The Council would withhold commencing the contempt proceeding for 21 days to allow the Respondents to make an application to the Court to vary the consent orders to seek additional time to comply; and 4. If the Council commenced the contempt proceeding then the Council would seek an order that the Respondents pay its costs for the proceeding.
On 9 June 2020 the First Respondent advised the Council that he had had been removing vehicles from the Premises but had been delayed by the COVID-19 pandemic, ill health and lack of money. The First Respondent asked the Council to allow him further time to complete the works until the end of 2021.
On 26 November 2020 Mr Harlor undertook an inspection of the Premises accompanied by Mr Brickhill and Council officers Ms Corey and Ms Hall. Mr Harlor took a number of photographs and prepared an inspection report and affidavit. His evidence was the consent orders had not been complied with and there remained a large number of cars and other goods on the Premises.
On 25 May 2021 Mr Harlor carried out an inspection of the Premises with Council officers Ms Corey and Ms Hall. Mr Harlor observed there was some progress in complying with the consent orders but that additional work was required to comply fully. Mr Harlor proposed to include progressive milestones in the clean-up schedule to accommodate the possibility of a series of car auctions.
On 7 July 2021 Mr Harlor sent a draft schedule of clean up works with a timeline for the required works to be completed. On 8 July 2021 the First Respondent agreed to the schedule with minor amendments. It was estimated that it would take at least until the end of January 2022 for the First Respondent to complete the works.
On 3 December 2021 Mr Harlor inspected the Premises and prepared an inspection report. Mr Harlor observed that substantial progress had been made in complying with the consent orders including the removal of approximately 400-500 cars and the removal of the majority of the tyres since the last inspection. Further work was required to comply with the consent orders including the removal of approximately 400-500 cars. Mr Harlor deposed the First Respondent was undertaking work at a reasonable rate given impediments over the last six months including a New South Wales police investigation, COVID-19 stay‑at‑home orders and higher than average rainfall in the local government area.
On 23 March 2023 Mr Harlor inspected the Premises and prepared an inspection report with photographs. Mr Harlor observed that since his last inspection marginal improvements had been made due to personal issues of the Respondents.
On 14 September 2023 Mr Brickhill deposed the building described in consent order 1(b)(i) as 'the large yellow building which appears to be an old demountable school building (Building 8)' had been removed from the Premises.
On 3 October 2023 Ms Corey inspected the Premises and took a series of photographs. Ms Corey prepared a report which noted that progress had been made since her last inspection but that an estimated 500-600 cars amongst other vehicles and scrap metal remained on the Premises in contravention of the consent orders.
On 19 February 2024 Ms Corey carried out an inspection of the Premises accompanied by Ms Flint the Council's legal and governance coordinator with the First Respondent present. Ms Corey deposed to there being approximately 600 cars and a large number of other vehicles, a large number of other goods, and a number of buildings and containers that were required to be removed by the consent orders. Ms Corey was told by the First Respondent that he had not made significant progress since her last inspection due to wet weather, the condition of the road and damage to vehicles. Ms Corey observed that a blue shipping container (Container 10) and four shipping containers (Containers 12, 13, 14 and 15) had been removed.
In relation to the First Respondent's circumstances, the Court was informed that from sometime in August 2022 the First Respondent was in custody for a criminal offence the subject of a prosecution in the District Court of New South Wales. Mr Banks was in custody for over a year. The precise period is unknown on the evidence.
At the hearing the First Respondent was allowed to rely on an unsworn statement made on 27 March 2024 which stated that his efforts to comply with the consent orders were substantial, despite difficulties caused by excessive wet weather which impacted the condition of the paddocks and rendered the Premises inaccessible to vehicles, including car carrier services which refused to return until wet conditions cleared and the public roads were repaired. The First Respondent acknowledged that the Council was not satisfied with his efforts and had accordingly made the decision to sell the Premises by way of a property swap with another person who is aware of the contempt proceeding and who will clear the remainder of the vehicles and any other goods not otherwise cleared on finalisation of the sale. The First Respondent also referred to accidents which rendered him physically and mentally unable to work as normal.
In unsworn oral statements made without notice at the hearing the First Respondent reiterated that since October 2023 the poor state of the public roads following heavy rainfall, which he considered was the Council's responsibility to maintain, had obstructed access for the heavy vehicles required to remove cars from the Premises and prevented him complying with the consent orders.

Submissions

The Council submitted that its evidence clearly established that contempt had been committed by the First Respondent. In relation to the First Respondent's claim that the local roads prevented the movement of vehicles, a large number of cars had been brought to the Premises since the consent orders were made and the Council had undertaken numerous inspections without encountering any difficulties with access. In terms of the First Respondent's ability to carry out the works it had now been five years and ten months since the First Respondent was required to comply with the consent orders during which there would have been periods without wet weather. The Council has given the First Respondent many opportunities to carry out the clean-up and while he has made progress there remains a large amount of material and cars that need to be removed to comply with the consent orders.
The First Respondent's solicitor submitted that as a consequence of the state of the roads, his personal circumstances including poor mental health issues and time spent incarcerated his efforts to comply with the consent orders were frustrated. This meant he was not guilty of contempt.

Finding of contempt made

The Council must establish any contempt of court orders beyond reasonable doubt, Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 543, 545, 548 (McHugh J).
The procedural requirements for commencing contempt proceedings in the SCR have been complied with by the Council.
The Council has established overwhelmingly through its affidavit evidence that the consent orders made in December 2017 have not been complied with. The consent orders required that work be done by 1 July 2018 and this did not occur.
The First Respondent's solicitor submitted that her instructions are that his efforts to comply were frustrated and he could not therefore be guilty of contempt. I note that it must be possible to comply with a court order and if an order is not capable of being complied with a person alleged to be in breach will not have committed contempt, Rolph, Contempt (Federation Press, 2023) at 523-4 citing National Australia Bank Ltd v Juric [2001] VSC 375 at [37] (Gillard J), Wyszynski v Bill [2005] NSWSC 110 at [56]-[59] (White J).
Since the contempt proceeding was commenced the First Respondent has been incarcerated for over a year and has had additional personal difficulties. In his unsworn letter summarised above in [25] and in unsworn oral statements made to the Court during the hearing the First Respondent sought to emphasise what he said was the poor state of the roads around the Premises which hindered his ability to have people come to the Premises with the necessarily heavy vehicles required for the removal of more cars. His oral statements particularly focussed on heavy rain events since October last year. There is reference to other rainy periods in the Council's affidavits. These circumstances appeared to underpin the argument made by his solicitor that his efforts to comply with the consent orders have been frustrated and consequently he cannot be guilty of contempt.
Accepting all of the above including the First Respondent's unsworn written and oral statements for present purposes I do not accept the argument made that his efforts to comply have been frustrated by events beyond his control over the very extensive period that has been allowed by the Council to comply with the consent orders. The time allowed to the First Respondent is now approximately five years and ten months since the orders were required to be complied with on 1 July 2018.
In any event the submission made that his efforts to comply with the consent orders have been frustrated are more relevant to the First Respondent's efforts to purge the contempt, which is a matter that is generally considered when sentencing for contempt.
None of the evidence addresses circumstances which prevented the First Respondent from complying with the orders in the first half of 2018, the relevant period to consider at present. The Council has established that the First Respondent is guilty of contempt. In relation to the further amended statement of charge, the First Respondent failed to cease using the land for the storage of motor vehicles and other goods as required by consent order 1(a)(i) as alleged in charge 1 (prayer 2 of the notice of motion), he has failed to remove motor vehicles and other goods as required by consent order 1(a)(ii) as alleged in charge 2 (prayer 3 of the notice of motion), and he has failed to comply with consent order 1(b) because he has not demolished or removed items and shipping containers as alleged in charge 3 (prayer 4 of the notice of motion) (the Council is not pressing charges 3(a), (d), (f)).
It will now be necessary for the First Respondent to be sentenced for this contempt. Much of the material already before the Court such as the First Respondent's efforts to remove a large number of cars, other objects and some structures as required by the consent orders will be relevant to sentencing including the determination of whether the contempt is serious.
The substituted performance orders contained in the notice of motion are directed to both Respondents. Whether such orders ought be made does not arise at this point but will arise in any sentencing hearing.
A timetable leading to a sentence hearing will be discussed with the parties.

Annexure A - Queanbeyan-Palerang Regional Council v Banks DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024

The Council submitted that its evidence clearly established that contempt had been committed by the First Respondent. In relation to the First Respondent's claim that the local roads prevented the movement of vehicles, a large number of cars had been brought to the Premises since the consent orders were made and the Council had undertaken numerous inspections without encountering any difficulties with access. In terms of the First Respondent's ability to carry out the works it had now been five years and ten months since the First Respondent was required to comply with the consent orders during which there would have been periods without wet weather. The Council has given the First Respondent many opportunities to carry out the clean-up and while he has made progress there remains a large amount of material and cars that need to be removed to comply with the consent orders.
The First Respondent's solicitor submitted that as a consequence of the state of the roads, his personal circumstances including poor mental health issues and time spent incarcerated his efforts to comply with the consent orders were frustrated. This meant he was not guilty of contempt.

The Council must establish any contempt of court orders beyond reasonable doubt, Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 543, 545, 548 (McHugh J).
The procedural requirements for commencing contempt proceedings in the SCR have been complied with by the Council.
The Council has established overwhelmingly through its affidavit evidence that the consent orders made in December 2017 have not been complied with. The consent orders required that work be done by 1 July 2018 and this did not occur.
The First Respondent's solicitor submitted that her instructions are that his efforts to comply were frustrated and he could not therefore be guilty of contempt. I note that it must be possible to comply with a court order and if an order is not capable of being complied with a person alleged to be in breach will not have committed contempt, Rolph, Contempt (Federation Press, 2023) at 523-4 citing National Australia Bank Ltd v Juric [2001] VSC 375 at [37] (Gillard J), Wyszynski v Bill [2005] NSWSC 110 at [56]- [59] (White J).
Since the contempt proceeding was commenced the First Respondent has been incarcerated for over a year and has had additional personal difficulties. In his unsworn letter summarised above in [25 ] and in unsworn oral statements made to the Court during the hearing the First Respondent sought to emphasise what he said was the poor state of the roads around the Premises which hindered his ability to have people come to the Premises with the necessarily heavy vehicles required for the removal of more cars. His oral statements particularly focussed on heavy rain events since October last year. There is reference to other rainy periods in the Council's affidavits. These circumstances appeared to underpin the argument made by his solicitor that his efforts to comply with the consent orders have been frustrated and consequently he cannot be guilty of contempt.
Accepting all of the above including the First Respondent's unsworn written and oral statements for present purposes I do not accept the argument made that his efforts to comply have been frustrated by events beyond his control over the very extensive period that has been allowed by the Council to comply with the consent orders. The time allowed to the First Respondent is now approximately five years and ten months since the orders were required to be complied with on 1 July 2018.
In any event the submission made that his efforts to comply with the consent orders have been frustrated are more relevant to the First Respondent's efforts to purge the contempt, which is a matter that is generally considered when sentencing for contempt.
None of the evidence addresses circumstances which prevented the First Respondent from complying with the orders in the first half of 2018, the relevant period to consider at present. The Council has established that the First Respondent is guilty of contempt. In relation to the further amended statement of charge, the First Respondent failed to cease using the land for the storage of motor vehicles and other goods as required by consent order 1(a)(i) as alleged in charge 1 (prayer 2 of the notice of motion), he has failed to remove motor vehicles and other goods as required by consent order 1(a)(ii) as alleged in charge 2 (prayer 3 of the notice of motion), and he has failed to comply with consent order 1(b) because he has not demolished or removed items and shipping containers as alleged in charge 3 (prayer 4 of the notice of motion) (the Council is not pressing charges 3(a), (d), (f)).
It will now be necessary for the First Respondent to be sentenced for this contempt. Much of the material already before the Court such as the First Respondent's efforts to remove a large number of cars, other objects and some structures as required by the consent orders will be relevant to sentencing including the determination of whether the contempt is serious.
The substituted performance orders contained in the notice of motion are directed to both Respondents. Whether such orders ought be made does not arise at this point but will arise in any sentencing hearing.
A timetable leading to a sentence hearing will be discussed with the parties.

Environment Court Rules 2007

Civil Procedure Rules 2005

At a glance

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Judgment (12 paragraphs)

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