Queanbeyan-Palerang Regional Council v Banks

A. Sentencing for contempt

1. Part 55 of the Supreme Court Rules 1970 (NSW) (SC Rules) applies in contempt proceedings in the Court pursuant to r 6.3 of the Land and Environment Court Rules 2007 (NSW). A person guilty of contempt can be punished by way of a fine or a gaol term, Pt 55 Div 4 r 13 of the SC Rules. The Council submits a fine is appropriate.
2. Circumstances giving rise to the finding of contempt for the failure to comply with the 2017 consent orders are identified in QPRC No 1 at [12]-[23] and these paragraphs are incorporated into this judgment. I observe that it is agreed that some efforts have been made by Mr Banks to comply with the 2017 consent orders over several years but these have not been fully complied with. According to the affidavit of Ms Corey council officer affirmed 6 March 2024 tendered at the liability hearing a large number of cars some 600 remain on the Premises together with 10 buses, 10 trucks, 50 trailers and 100 motorbikes. Other goods also remain. Some structures have been removed and a shed and two shipping containers as specified in prayers 4(b), (c), (e) of the further amended notice of motion remain to be removed.

Factors to consider in sentencing for contempt

1. The charge is for contempt for failing to comply with court orders. The seriousness of the contempt depends on whether it is 'technical' or accidental, wilful or contumacious. As I stated in Georges River Council v Mifsud [2017] NSWLEC 113 (Mifsud) at [22]: [22] As identified in Pt 55, r 13(1) of the SC Rules contempt of court is punishable by fine or imprisonment or both. I will be considering an appropriate fine in this case. Contempt of court can be described as technical, wilful or contumacious. Technical contempt is casual, accidental or unintentional. Wilful contempt occurs where there is deliberate disobedience without the intention of defying the court's authority. Contumacious contempt occurs if there is an element of deliberate defiance of the court's order, as identified in Hutley v Cosco [2016] NSWLEC 15 at [14] citing Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25].
2. In Fairfield City Council v Adams [2009] NSWLEC 199 I considered the purpose of charging a defendant for contempt at [39] (my emphasis): [39] … Biscoe J [in Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92] considered the distinction between criminal and civil contempt and stated at [48] that "Disobedience of a court order in a civil proceeding is a civil contempt but amounts to criminal contempt if it involves deliberate defiance; that is, as is sometimes said, if it is contumacious". His Honour referred to Hearne v Street (2008) 235 CLR 125 in stating that determining whether a contempt charge is for criminal or civil contempt turns on whether the purpose of the charge is remedial or coercive (civil contempt) or punitive (criminal contempt). His Honour concluded at [58]: Disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway (1995) 183 CLR 525; or (b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street (2008) 235 CLR 125.
3. The contempt of Mr Banks is not contumacious and is civil in nature. The purpose of the charge is remedial meaning that the aim is to have the court orders complied with through the imposition of a penalty by way of a fine in this case.
4. In Fairfield City Council v Camilleri [2024] NSWLEC 56 Robson J at [33] considered the primary factors of sentencing, generally reflecting the earlier decision of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 amongst other cases, and is helpfully set out below: [33] The primary factors relevant when considering the appropriate penalty for contempt (which I respectfully adopt) are noted by Payne JA in [Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390] at [66], [67] referring to a list of factors identified by Barrett J in Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27] (and which generally reflect the earlier analysis of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. In my summary, the factors, which are overlapping, comprise: (1) the seriousness of the contempt proved; (2) the contemnor's culpability; (3) the reason or motive for the contempt; (4) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (5) whether there has been any expression of genuine contrition by the contemnor; (6) the character and antecedents of the contemnor; (7) the contemnor's personal circumstances; (8) the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct; and (9) the likely effect that punishment will have on the contemnor, including any hardship it might cause.

Council's evidence

1. The Council read an affidavit of Ms Corey affirmed 22 March 2024 attesting to emails from neighbours about the potential and likely environmental impacts arising from Mr Banks' use of the Premises for storage of vehicles and other goods containing hazardous materials, the leakage of fluid/oil onto the ground and scattered fragments of plastic and metal.
2. The Council read an affidavit of Ms Corey affirmed 24 May 2024 which addressed the state of public roads around the Premises. The Kings Highway is at one end of Mulloon Road, which becomes Manar Road, which then connects to the Kings Highway. Access to the Premises from the Kings Highway by vehicle can be from either direction (the Mulloon Road/Kings Highway intersection, or the Manar Road/Kings Highway intersection). Whilst the causeways may be inaccessible for short periods after heavy rain, water levels tend to drop quickly after the rain ceases meaning that the causeway is again passable. Ms Corey attests to travelling along Mulloon Road and Manar Road at least twice a year to inspect other properties during the period between July 2010 and May 2021.

Mr Banks' evidence

1. Mr Banks swore an affidavit dated 5 June 2024 that attests to his intention to collect vehicles for the purpose of building a 'superfund', and the substantial personal physical and mental difficulties he has faced since 2010. The affidavit attaches two reports of a psychiatrist dated 16 January and 24 August 2023. Annexed are three undated black and white photographs purporting to be evidence of the poor condition of the roads leading to the Premises.
2. Mr Banks attests that various circumstances have prevented him from fully complying with the 2017 consent orders including the poor condition of the council road near the Premises, poor weather and lack of maintenance, mental health issues, the death of his mother, being subject to violence from a family member, his incarceration from June 2022 to June 2023 where he had several very bad experiences, as a result of which he was hospitalised for a month and suffered ongoing health issues including spending several months in a wheelchair. He has ongoing depression and post-traumatic stress disorder. The number of vehicles he had was originally over 3,500 according to Mr Banks, which he has removed many of. He has removed many tonnes of debris and scrap metal. Vehicles have been reduced substantially to less than 400 vehicles. A recycling company is coming on 5 June 2024 to assess what is remaining on the Premises which needs removal.
3. Mr Banks has negotiated a sale involving a swap of properties with an owner of land in Queensland. He has been asked to clear as much of the Premises as possible and the incoming owner will take care of the rest. He should not be found guilty of contempt of court as he has done as much as he can given his personal struggles. His efforts to date have been substantial and are ongoing. He has continued to clear the Premises as much as possible. The Council's insistence on compliance has also caused him stress. He considers he is in the final stages of the major clean-up with the goal to be achieved by the end of this year.

Council's submissions

1. In relation to seriousness of the contempt Mr Banks' failure to comply with the 2017 consent orders requiring work to be done by 1 July 2018 arises from his failure to take action. The length of time given to him, firstly to comply with the 2017 consent orders, and secondly to purge the contempt, also demonstrates that his failure to comply is more than merely 'accidental' and amounts to wilful contempt. While Mr Banks' mental health may have contributed to his being in contempt, his prolonged failure to comply with the 2017 consent orders, which he had agreed to, is more than casual, accidental or unintentional. His evidence does not indicate a lack awareness of the 2017 consent orders or of his own disobedience. The contempt was the result of inaction by Mr Banks over a long period of time, and this renders the contempt serious (as was held in Fairfield City Council v Camilleri at [38]). The 2017 consent orders were made over six years ago. Mr Banks agreed to clean up the Premises and to remove the large number of motor vehicles, other goods and selected buildings and containers. That still has not been done despite the Council giving him close to three years to comply before commencing these contempt proceedings on 11 May 2021, and agreeing to lengthy adjournments of the proceedings to allow him to purge his contempt. In the context that approximately 600 cars remain on the Premises, as well as the other goods and buildings the subject of the 2017 consent orders, his conduct demonstrates disregard for his obligations and the jurisdiction of the Court.
2. Mr Banks was and is aware of the 2017 consent orders and was informed of the possible consequences to himself for failing to comply. Mr Banks was legally represented at first instance, at the hearing of the notice of motion for contempt and at this sentencing hearing.
3. The consequences of Mr Banks' contempt include: 1. Potential for environmental harm (affidavit of Ms Corey affirmed 22 March 2024); 2. Adverse impacts on amenity of neighbouring properties; and 3. Undermining of the authority of the Court and the integrity of the statutory planning framework.
4. The Council accepts that Mr Banks' mental state is a relevant consideration in relation to his contempt.
5. In relation to the reasons given by Mr Banks for why there has been non‑compliance, Mr Banks has given evidence that the 'damaged causeway' and 'washed out roads' that lead to the Premises contributed to his contempt. However, he provides no compelling or corroborating evidence that these factors have inhibited his clean-up efforts prior to 1 July 2018 or since. Moreover, Ms Corey's evidence is that there are two roads leading to the Premises and she has travelled along those roads at least twice a year for over 10 years without difficulty. Ms Corey also deposes that one property on Mulloon Road which is regularly accessed by heavy vehicles (associated with agricultural uses) has not reported any access issues.
6. Concerning the reason for the contempt, the Council submits there is evidence that Mr Banks sells cars and car parts. The affidavit of Mr Banks dated 5 June 2024 at [6]-[7] states that the car collection was for superannuation to fund his retirement. In that sense Mr Banks obtained a benefit from his contempt.
7. No apology has been provided nor is there evidence of contrition before the Court. General and specific deterrence is relevant, particularly given the overall history of non-compliance and Mr Banks' evidence.
8. Payment of any fine should be made to the Council as provided by s 694 of the Local Government Act 1993 (NSW) (LG Act). A table of cases has been provided in the Council's submissions which show a range of possible penalties. Fairfield City Council v Camilleri has some similarities to this matter.

Mr Banks' submissions

1. Mr Banks' moral culpability is reduced given his poor mental state over many years, as identified in his affidavit dated 5 June 2024 and the psychiatric reports attached to his affidavit. The need to denounce the crime is therefore reduced. His mental condition at the time of the offence is critical to assessment of the objective seriousness of the offence. The psychiatric reports identify the serious mental health issues that he has faced from 2010. Mr Banks has also been subject to domestic violence. His mental health has worsened since his incarceration in 2022-23 with the psychiatric reports identifying that Mr Banks suffers from post-traumatic stress disorder and a major depressive disorder. The need for general and specific deterrence can be modified where mental health issues are present.
2. Mr Banks submits that other factors contributing to the contempt include: 1. the bad repair of the road and the washed out causeway prevented trucks from entering the Premises and removing vehicles; 2. the wet weather also prevented trucks from entering, incurred risks of being bogged, and prevented the removal of cars; 3. Mr Banks was incarcerated for 12 months before he was granted Supreme Court bail. He was not in a position to continue to arrange the removal of vehicles; and 4. Mr Banks' bail conditions required him to report to Queanbeyan Police Station and this takes time out of his day. Mr Banks is still on Supreme Court bail and his liberty is restricted. (I note there is no evidence of Mr Banks' bail conditions.)
3. There is no proven environmental harm based on Ms Corey's affidavit affirmed 22 March 2024 (above in [14]), which merely records the 'fear' of neighbours.
4. Mr Banks is on Centrelink benefits and his capacity to pay a large fine is very limited (see below in [45]).

Finding on sentence for contempt

1. The evidence establishes that Mr Banks understood the nature of the 2017 consent orders he entered into and that is emphasised by the fact he was legally represented at the time these orders were made in 2017.

Seriousness of contempt

1. The Council submits that the failure to comply is wilful because Mr Banks was aware of the 2017 consent orders and failed to comply over a lengthy period and his non-compliance was deliberate. While Mr Banks has taken steps to reduce the number of vehicles and has removed some debris and most of the structures he was required to move, much remains to be done.
2. The lengthy period of the contempt means that activity in breach of the EPA Act has been ongoing for several years, which does not facilitate orderly development, one of the EPA Act's objectives. Ms Corey's affidavit dated 22 March 2024 attests to concerns expressed by numerous neighbours about the potential for run-off of oil and other harmful material from Mr Banks' property onto neighbouring properties as a problem that has existed for some time. While Mr Banks submitted that this material did not establish environmental harm and it does not, it does highlight the potential for such harm, exacerbated by how long the clean-up has been outstanding.
3. Mr Banks provided a number of reasons for why he has not been able to purge the contempt over six years. One of these is that the state of the Council maintained Mulloon Road has been so poor that large vehicles which can take away car bodies have not been able to visit the Premises. The evidence in his affidavit dated 5 June 2024 is little more than an assertion about the state of the road and the three undated photographs attached provide no useful depiction of the state of any particular section of the road. Further the location of what the photographs depict is not specified. This evidence can have little weight attributed to it. Ms Corey's affidavit affirmed 24 May 2024 attests to the accessibility of roads in the vicinity of the Premises including that there are two means of accessing the Premises from the Kings Highway. I do not accept that the state of the public roads around the Premises have prevented Mr Banks carrying out all of the work required by the 2017 consent orders over the lengthy period he has had.
4. Related to the state of the road are assertions that wet weather has prevented the work being undertaken. I identified the same submission in QPRC No 1 at [26] and noted that it was particularly directed to the period since October 2023. Accepting that there may have been some periods since October 2023 when wet weather meant removal of items was difficult for Mr Banks does not address to any great extent the entirety of the period he has been allowed to purge his contempt.
5. Similarly the period of incarceration of about 12 months in 2022-23 explains why he was unable to attend to the removal of items, but that is also a relatively short time in the lengthy period allowed to him to comply to date.
6. The other reasons given by Mr Banks otherwise arise from his unfortunate personal circumstances, including poor physical health. I accept that Mr Banks has had substantial mental health challenges over the last few years as identified in the two psychiatric reports attached to his affidavit, which does ameliorate his moral culpability.

Reasons for contempt

1. Contrary to the Council's submission there is no evidence that Mr Banks was buying and selling car parts. Mr Banks' motivation for collecting cars and vehicles in particular nevertheless appears to be financial. His evidence is that he was collecting vehicles to sell later to fund his retirement, in other words there was a financial incentive motivating his activities.

No remorse

1. Mr Banks did not plead guilty to contempt and a liability hearing was necessary, hence QPRC No 1. No expression of remorse by Mr Banks is before the Court.
2. There is not always a clear line between technical contempt meaning casual or accidental and wilful meaning deliberate when considering the seriousness of contempt. Given the scale of work required by the 2017 consent orders the failure to fully comply over an extended period by Mr Banks, being six years since 1 July 2018, the contempt cannot be considered technical. Mr Banks has failed to get his act together over the lengthy period allowed to him to purge his contempt and has not shown any remorse. Some of that delay but by no means all can be explained by his personal circumstances. On balance I consider it is fair to characterise Mr Banks' contempt as wilful, at a low level on the possible spectrum of seriousness.

Deterrence

1. In determining punishment, here whether a fine should be imposed, deterrence should be considered. In Mifsud I stated at [41]: [41] It is important to consider deterrence generally in relation to contempt of court orders. The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced. Kirby J in Pelechowski v Registrar of the Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] described it as follows: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result" [Registrar, Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 318; R v Sergiou (1983) 5 Cr App R (S) 227]. Obviously, the culpability of the contemnor is relevant to the order which must be made [Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98]. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.

No maximum penalty

1. There is no maximum penalty for cases of contempt, each case turns on its own facts. The Council provided a list of nine potentially comparable cases showing a range of penalties from $8,000 to $77,400. The cases with penalties of $40,000 and above are clearly more serious than this matter. The facts in Fairfield City Council v Camilleri have some similarity. The respondent in that case owned land which he used for the purpose of a 'waste or resource management facility', a prohibited use under the relevant planning controls. Consent orders were made by which the respondent was ordered to cease that use and remove all waste materials within three months. The consent orders were not complied with. The respondent pleaded guilty. The contempt was found to be wilful. Aggravating factors included the high level of seriousness of the contempt, that the contempt was ongoing, and the respondent presented no evidence of remorse. Removal of some of the waste and the respondent's mental health were mitigating factors. A penalty of $20,000 was imposed.

Totality of culpability

1. The three charges of contempt are inter-related in that the failure to remove vehicles and other goods, and demolish structures, results in the ongoing use of the Premises for storage, so that the temporal, physical and causal aspects of the contempt charges are closely entwined. Any penalty imposed should reflect the overall criminality of the contempt in these circumstances.

Capacity to pay fine

1. Hardship caused by punishment of a contemnor is a relevant factor. Under s 6 of the Fines Act 1996 (NSW) the Court is required to take into account the capacity of a defendant to pay a fine in setting an amount and consider 'such information regarding the means of the accused as is reasonably and practicably available to the court for consideration'. Whether or not this provision applies in civil contempt proceedings directly, Mr Banks' capacity to pay a fine is a relevant consideration.
2. Mr Banks affirmed an affidavit dated 24 July 2024 stating he has received Centrelink payments since his accident in 2010. Annexed to his affidavit were Jobseeker Centrelink payment summaries with medical exemption, and two bank statements for the period from February 2023 to February 2024 for the account in which he received Jobseeker payments showing very low closing balances. Also attached to the affidavit were Ms Williamson's bank account statements from March to June 2024, Ms Williamson's income tax statement for the 2023/2024 financial year, a default notice for mortgage payments in arrears issued in May 2024, driving licence suspension notice due to unpaid fines issued in May 2024, second overdue notice of Local Land Services rates issued in June 2024 and an overdue electricity account issued in July 2024. The bank statements supplied for Mr Banks show that regular transactions to another account were made. No details of that second account have been provided.
3. Market value of the Premises of $1,300,000 is shown on Mr Banks' Centrelink payment summary. The assessed value is shown as $170,000. No explanation is provided for this difference. No income tax statements were provided by Mr Banks.
4. As the Council submitted, in the absence of all relevant financial information from Mr Banks fully showing his current financial circumstances it is difficult to assess his capacity to pay a fine. Mr Banks has a potentially valuable property which could assist him in arranging his affairs so that he can pay what is required, albeit that property is jointly owned. Doing the best I can on what has been provided I accept that Mr Banks has some if limited capacity to pay a fine.

B. Indemnity costs order to be made

1. A further consideration is the amount of legal costs which Mr Banks will be liable for. Costs generally follow the event in contempt matters subject to the exercise of the court's discretion not to award costs. The Council should have its costs of the contempt proceedings paid by Mr Banks given that the commencement of proceedings was reasonable and the proceedings have been properly pursued by the Council.
2. The Council seeks an order that its costs be paid on an indemnity basis from Mr Banks, as has been ordered in numerous cases referred to in the Council's submissions there described as the ordinary practice. Ultimately each case depends on its own circumstances. Ritchie's Uniform Civil Procedure NSW states at [SC Rules Pt 55 r 13.7]: Where contempt is established on an application by a private prosecutor, the usual order is for costs to be paid on the ordinary basis: McIntyre v Perkes (1988) 15 NSWLR 417; BC8801160; Ditfort v Katz (NSWCA, Full Court, 8 July 1991, unreported, BC9101811); Global Custodians Ltd v Mesh [2000] NSWSC 845; BC200005019 at [37] per Young CJ in Eq (no such apology proffered, restraining order made and costs on usual basis). But costs may be a consideration in the imposition of a penalty and, at least in that context, costs may be ordered to be paid on an indemnity basis: Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322; BC200610117 at [58] per Brereton J; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118; BC200509669 at [102] per Campbell J (full indemnity for costs); McGuirk v University of New South Wales [2010] NSWSC 448; BC201003075 (order for costs of the penalty proceedings to be paid forthwith on an indemnity basis); Circuit Finance Australia v Sobbi [2010] NSWSC 912; BC201005901 (order for costs alone not sufficient - conduct was deliberate and contrition too late and too little - fine ordered and indemnity costs).
3. The order for costs to be paid on an indemnity basis in civil contempt proceedings is common, but each case must be considered on its own facts, see Robson J in Fairfield City Council v Camilleri at [60], citing Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 at 233-234 (Sheppard J).
4. The lengthy history of these contempt proceedings to enable time for Mr Banks to comply with the 2017 consent orders suggests that an order for costs on an indemnity basis ought to be made. The Council has had to incur substantial costs in these circumstances. The Council's substantial costs estimated to be in the amount of $150,000 incurred over the necessarily lengthy period since these contempt proceedings were commenced on 11 May 2021 will be ordered to be payable on an indemnity basis.
5. In Environment Protection Authority v Barnes [2006] NSWCCA 246 the Court of Criminal Appeal accepted that in some circumstances arising in criminal proceedings the quantum of legal costs can be considered when imposing a penalty as a sentence given the financial burden it imposes on a defendant. While not directed to civil contempt proceedings such a consideration reasonably arises in this sentencing context.
6. I note that a mechanism exists under s 10 of the Fines Act for Mr Banks to approach the Court Registrar in relation to payment of a penalty (s 4(1)(a1) definition of fine for purposes of the Fines Act).

C. Appropriate penalty

1. The appropriate penalty is $15,000 in light of all the circumstances outlined above. I note that under s 694(1)(a) of the LG Act any penalty is payable to the Council.

D. Gross sum costs order to be made

1. A gross sum costs order is sought pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) (CPA) in the amount of $150,000 as identified in an affidavit of Mr Brickhill solicitor for the Council dated 23 May 2024. The affidavit identifies the circumstances giving rise to the commencement of contempt proceedings, and an outline of the extensive procedural history of the matter before the Court since the notice of motion was filed on 11 May 2021 with 14 mentions and several lengthy adjournments between 21 May 2021 and 22 September 2023. The liability hearing was heard on 3 April 2024. A chronology of procedural steps is attached to the affidavit as Annexure A. The Council's legal costs incurred since 1 May 2020 are itemised in a table in Annexure B. The invoices sent by the Council's solicitors and barrister to the Council are summarised as follows: Costs type Amount (ex GST) A Professional solicitor fees incurred from and including the preparation of the First Letter Before Action [to commence contempt proceedings] $128,340.90 B Disbursements (including Counsel's fees) from and including the preparation of the First Letter Before Action $24,999.13 C Estimated additional solicitor professional fees $15,500.00 D Estimated additional disbursements (including Counsel's fees) $4,000.00 Total costs $172,840.03 Total costs less discount of approx. 13.22% $150,000.00

1. Principles for such costs orders were identified in Hamod v State of New South Wales [2011] NSWCA 375 at [813]‑[820] (Beazley JA, Giles and Whealey JJA agreeing) and Young v Hones (No 3) [2014] NSWSC 499 (Garling J) summarised in Young v King (No 14) [2018] NSWLEC 162 at [11]. In summary, the principles as identified in the Council's submissions which I accept provide: 1. A lump sum costs order may be appropriate where the Court considers it desirable to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment, Young v Hones (No 3) at [27]; 2. The power must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter, Hamod v State of New South Wales at [793]; 3. The Court is not required to undertake a detailed examination of the kind that would be appropriate to a taxation or a formal costs assessment, Young v Hones (No 3) at [28]; 4. The Court must have sufficient confidence in arriving at an appropriate sum on the materials available, Hamod v State of New South Wales at [793]; 5. The Court must be confident that the approach taken to estimate costs is logical, fair and reasonable, Hamod v State of New South Wales at [793]; 6. The Court must be 'astute to prevent prejudice to the Respondents by over estimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail-safe" discount on the cost estimates submitted to the Court', Hamod v State of New South Wales at [793]; and 7. Factors that merit particular consideration include (Hamod v State of New South Wales at [816]): 1. The relative responsibility of the parties for the costs incurred; 2. The degree of any disproportion between the issue litigated and the costs claimed; 3. The complexity of proceedings in relation to the cost; and 4. The capacity of the unsuccessful party to satisfy any costs liability.
2. The Council submitted that the gross sum cost order sought is appropriate for the following reasons: 1. It is desirable to make such an order to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment. 2. The Court can be confident that the approach taken to estimate the Council's costs is logical, fair and reasonable. Relevantly: 1. The amount sought ($150,000) has been determined with reference to the costs incurred by the Council in prosecuting these proceedings since 1 May 2020. The Council first put Mr Banks on notice on 22 May 2020 of its view that he was in contempt and foreshadowed the commencement of these proceedings, up to and including the costs estimated to be incurred for the hearing on 11 July 2024, less a discount of approximately 13.22%; and 2. A discount of 13.22% is consistent with the range of discounts applied by NSW Superior Courts where gross sum cost orders have been awarded in the context of claims for indemnity costs (0‑20%). Such a discount takes into account contingencies that would be relevant in any formal costs assessment, see Pham v Papaioannou [2019] NSWLEC 180 (contempt proceedings where indemnity costs ordered in a nominated gross sum and no discount applied), Seven Network (Operations) Ltd v Dowling (No 3) [2021] NSWSC 1371 at [19]-[22] (contempt proceedings, 10% discount applied, although not all costs were sought in a lump sum cost application), McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356 (5% discount applied, although total costs were based on discounted hourly rates), Richardson v Richardson [2021] NSWSC 353 at [191] (15% discount applied), Kostov v Nationwide News Pty Ltd (No1) [2018] NSWSC 1822 at [102]-[103] (20% discount applied). 1. Mr Banks' conduct has contributed significantly to the quantum of the costs incurred by the Council in prosecuting these proceedings. This conduct includes: 1. Maintaining a plea of not guilty despite the weight of evidence against him, necessitating the incursion of costs in preparing for and appearing at a contested hearing on 3 April 2024; 2. Unsuccessfully opposing the Council's notice of motion heard on 12 October 2023 (where an amendment to the Council's notice of motion to include the substituted performance order now sought was contested); and 3. Not attending to the necessary clean-up work despite numerous reasonable opportunities to do so. 1. Mr Banks is legally represented and has had adequate opportunity to make submissions on the nature and quantum of the cost order sought by the Council.
3. I accept the four reasons given by the Council as warranting a gross sum costs order in the circumstances of this matter. The relevant principles in considering a gross lump sum costs order were identified by the Council as set out above in [57]. Such an order will avoid further expense and delay in a matter that has already had a lot of expense and delay (reasons 1 and 3). As to the amount sought, Mr Brickhill's affidavit dated 23 May 2024 provides an explanation for how the costs have been incurred over a period from 1 May 2020 to date including an estimate of the future costs incurred by the Council for the sentencing hearing on 11 July 2024. An appropriate discount has been allowed for, as detailed in the Council's submissions above including in reliance on taxation practice. Mr Banks' solicitor has had the opportunity to review the amount sought and has not raised any concerns about the calculation of the amount sought (reasons 2 and 4). If ordered to be paid Mr Banks submits that he will need to enter into a payment arrangement with the Council.
4. The principles identified by the Council as applying to the making of gross sum costs are satisfied by the evidence relied on by the Council. A gross sum costs order will be made. As identified during the hearing and above Mr Banks is unable to pay such a large sum within the usual period of payment of 28 days based on his income.

E. Substituted performance order warranted

1. The Council seeks a substituted performance order and costs of doing work in prayers 4A, 4B, 4C of the further amended notice of motion. The Court has power to impose a substituted performance order in contempt proceedings pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and such orders have been made. That rule provides as follows: 40.8 Substituted performance If a judgment requires a person to do an act and the person does not do the act, the court - (a) may direct that the act be done by a person appointed by the court, and (b) may order the person to pay the costs incurred pursuant to the direction.
2. In addition, the Court also has power to order substituted performance pursuant to s 23 of the Land and Environment Court Act 1979 (NSW) (LEC Act), see Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136 (Cmunt (No 2)) at [67]. That section is in the following terms: 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
3. The Council submits that a substituted performance order ought to be made permitting the Council to enter the Premises and carry out the 2017 consent orders to the extent they have not been complied with, first allowing the Respondents a further reasonable time to do so. This order would be made against Ms Williamson also (noting she has not been charged with contempt).
4. The Council is concerned about the significant length of time that this matter has been before the Court, and the Respondents' failure to comply with the 2017 consent orders since they were made. More than six years have passed since the Respondents were required to give effect to the 2017 consent orders. They have been afforded a substantial amount of time and opportunity to comply. While some progress has been made, there are still a substantial number of motor vehicles and other goods at the Premises. The evidence of Mr Banks that he has 'done his best to comply' indicates that it may be necessary for the Council to step in for the necessary clean-up works to be completed.
5. If made prayers 4A and 4B allow the Council to carry out works to comply with the 2017 consent orders and clean up the Premises if the Respondents fail to do so within a further reasonable timeframe. The Council considers that four months is a reasonable timeframe, after which time the Council would have the discretion to carry out the works itself and recoup the cost of doing so from either or both of the Respondents. Prayers 4A, 4B and 4C provide discretion to the Council to give effect to the orders. The Council does not wish to be compelled to do so. An order in equivalent terms was made in reliance on UCPR r 40.8 in Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 at [35] and in reliance on s 23 of the LEC Act in Cmunt (No 2) at [67]. The discretionary nature of the substituted performance order sought would permit the Council to defer exercising its rights if, once the specified period had lapsed, it was satisfied that the Respondents were making genuine progress to implement the necessary clean-up work. It also accommodates clean-up work being undertaken by Mr Banks as he intends to do according to his affidavit.

Respondents' submissions

1. Mr Banks opposes such an order being made or, if it is made, seeks more time to do the work say by April 2025 or within 12 months.
2. Ms Williamson opposes such an order being made stating in unsworn oral statements that the Council has not approached her about compliance with the 2017 consent orders as the officers have focussed on Mr Banks solely. She also does not recall signing any consent orders. As the Council identified by reference to the affidavit of Mr Brickhill affirmed on 6 May 2021 Ms Williamson was legally represented at the time that the 2017 consent orders were made and her solicitor signed them on her behalf. Following a directive from the Court her solicitor confirmed in writing that Ms Williamson had been advised that failure to comply with the 2017 consent orders could give rise to contempt proceedings.

Finding on substituted performance

1. It is fair and reasonable that prayers 4A and 4B be made against both Respondents because: 1. The Premises are jointly owned by the Respondents; 2. The 2017 consent orders were made against both Respondents with their consent. They were legally represented at the time when the consent orders were signed on Ms Williamson's behalf by her solicitor. Her solicitor confirmed to the Registrar that Ms Williamson was advised that failure to comply with the 2017 consent orders could result in contempt proceedings (solicitor's email annexed to the affidavit of Mr Brickhill affirmed 6 May 2021); 3. The Respondents have had ample opportunity to give effect to the 2017 consent orders by completing the necessary clean-up, even providing for personal difficulties; 4. Ms Williamson has been involved in the clean-up and continued to take steps to have vehicles and other goods removed while Mr Banks was in prison (affidavit of Mr Harlor council officer affirmed 23 March 2023); 5. The orders will provide a reasonable period of six months for the Respondents to carry out the necessary clean-up work before the Council may step in; 6. While Mr Banks refers to a possible land swap in his affidavit dated 5 June 2024, no time frame is provided and that possibility may not eventuate; and 7. It is in the interests of the parties and the neighbouring property owners to provide certainty and finality in relation to the clean-up of the Premises without the need for further costly litigation, see Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80 at [47].

Liability for costs of substituted performance order

1. The Council seeks an order in prayer 4C that its costs of undertaking the work be paid by both Respondents. I agree that the Council is entitled to protect its position on costs and have the ability to recover its costs from Mr Banks if it exercises its rights under the substituted performance orders. The items and material the subject of the orders are Mr Banks' property. No submission was made that Mr Banks should not be liable for this work if carried out and the order should be made that Mr Banks is liable.
2. Should costs of the Council doing the work also be payable by Ms Williamson who is a co-owner of the Premises? The various items the subject of the 2017 consent orders are agreed to be the property of Mr Banks. It is appropriate that he be liable for any costs the Council may claim for carrying out work on the Premises.

Conclusion

1. As a result of my finding in QPRC No 1 Mr Banks will be convicted of contempt in relation to the three charges in the statement of charges attached to the further amended notice of motion dated 18 October 2023. Various orders will be made consistent with my findings above.

Orders

1. The Court orders: 1. The First Respondent is convicted of contempt pursuant to charge 1 for failure to comply with order 1(a)(i) of the consent orders made on 1 December 2017. 2. The First Respondent is convicted of contempt pursuant to charge 2 for contempt for failure to comply with order 1(a)(ii) of the consent orders made on 1 December 2017. 3. The First Respondent is convicted of contempt pursuant to charge 3 for failure to comply with order 1(b) of the consent orders made on 1 December 2017. 4. The First Respondent is fined the sum of $15,000 for contempt for failure to comply with orders 1(a)(i), 1(a)(ii) and 1(b) of the consent orders made on 1 December 2017. 5. The First Respondent is to pay the amount of $15,000 under order (4) above to the Council as provided by s 694(1)(a) of the Local Government Act 1993 (NSW). 6. The First Respondent must pay the Council's legal costs on an indemnity basis for the gross sum of $150,000 within 90 days unless otherwise agreed between the parties. 7. If the Respondents do not completely comply with orders 1(a)(ii) and 1(b) of the consent orders made on 1 December 2017 within six months of the date these orders are made, the Council by itself, its employees, agents or contractors, may enter the Premises at 648 Mulloon Road Mulloon and carry out works to give effect to the terms of orders 1(a)(ii) and 1(b). 8. Prior to exercising its rights under order (7) above, the Council must give 14 days' written notice to the Respondents of its intention to enter the Premises and carry out the works. 9. The First Respondent is to pay the reasonable costs incurred by the Council associated with the carrying out of the works pursuant to order (7) above.

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: 08 October 2024