The Respondents, Mr and Mrs Cmunt, face charges of contempt, laid on 29 November 2017, in respect of alleged disobedience of orders made by Preston ChJ on 3 August 2017 (entered on that day, and "taken out" on 4 August 2017), after the substantive hearing of these civil enforcement proceedings on 24-26 July 2017: Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95.
Council had issued a prevention notice regarding the keeping of no more than two dogs at a time on the Cmunt site, as early as 7 August 2015, and held off bringing proceedings till 22 September 2016.
The Council is content that the Cmunts have complied with Preston J's orders other than Order 2, requiring the Respondents "to cease keeping dogs on the Premises" within 60 days.
Council circularised the neighbourhood on 25 September 2017, inviting residents to report to Council any noise issues "generated by barking of dogs from no 12 Kiparra Drive, Berridale [or] any sighting of dogs within the property", from 3 October 2017 (Exhibit MJB3 pp58 and 73).
The 60 days expired on or about 3 October 2017, but Council has continued to receive complaints, mainly about barking noises emanating from the subject site, namely 12 Kiparra Drive, Berridale.
Mrs Cmunt has consistently denied that she has dogs on the property, and claims that any found there were brought by friends, and on site only temporarily.
Mrs Cmunt launched an appeal against Preston J's judgment and orders, and that appeal is listed for hearing on 13 September 2018. It named as Respondents two Council officers, rather than the Council itself.
Relevantly, Preston J said in his primary judgment, at [211]:
I am not, however, persuaded that it is appropriate to make the further order sought by the Council that, should Mr and Mrs Cmunt fail to comply with the Court order that they not keep dogs on the property, the Council can enter the property and remove any dogs that are present there. First, I have doubts as to whether that is an appropriate order for the Court to make under s 252(6) of the [Protection of the Environment Operations Act 1997 ("POEO Act")] to remedy or restrain the breach of the Prevention Notice and the POEO Act. There is no provision in the POEO Act equivalent to s 121ZJ(11) of the EPA Act whereby the Court can order the Council to exercise its functions under s 98 of the POEO Act, if a person does not comply with a prevention notice, to take action to cause the prevention notice to be complied with by itself or by its employees, agents or contractors. Second, it may cause problems in the execution of the order. The dog on the property might not be a dog kept by Mr and Mrs Cmunt in contravention of the Court order. Third, it may be unduly intrusive on Mr and Mrs Cmunt's right to privacy and to quiet enjoyment of their property.
In these contempt proceedings, the Council, with notice given to the Respondents, seeks not only the imposition of convictions and fines for contempt, and an order for costs, but also a "substituted performance" order in the following terms (communicated to the Cmunts by letters dated 28 June 2018 (Broder 27 July 2018, pp27-28)):
The applicant be permitted to seize and remove any dogs kept on Lot 21 DP 250314, known as 12 Kiparra Drive, Berridale NSW 2628 ('the Premises') whilst the Premises are owned or occupied by the First Respondent or the Second Respondent.
The Cmunts sought an order from the Court of Appeal staying Preston J's orders, but the learned President of that Court, Beazley P, refused such a stay on 12 February 2018: Cmunt v Vescio; Broder [2018] NSWCA 21.
Beazley P noted (at [6]) that these contempt proceedings were already on foot, and (at [9]) that one ground advanced for a stay was that it was difficult for Mrs Cmunt to deal with the appeal and the contempt proceedings at the same time.
Her Honour also noted (at [10]-[11]) the evidence before her that dogs had been seen and heard regularly on the site between 3 October 2017 and 16 January 2018.
Her Honour commented (at [21]) that the appeal "is not strongly arguable". (See order of the Court of Appeal in Exhibit C4).
Subsequently, on 16 February 2018, Molesworth AJ declined to follow any different course regarding staying the orders.
Directions were made, and the contempt proceedings were, on 25 May 2018, listed to be heard at Cooma on 30-31 August 2018. The Cmunts were notified on 1 June 2018 (Broder 28 August 2018, annexures "I" and "J").
The Cmunts have regularly sought to delay any proceedings concerning dogs on their premises on the grounds of ill-health.
Medical certificates have been provided, in vague, and unsworn terms, by a range of doctors over recent months (see, e.g., Exhibits C1 and C2). Interestingly, some certificates quote various different addresses for the Respondents.
Most recently Mrs Cmunt wrote to "the Preceding (sic) Judge" of this Court, on 23-24 August 2018 (Exhibit C3), seeking an adjournment of the present contempt hearing, on the grounds of (1) her "longstanding severe lower thoracic scoliosis and sciatica which make it difficult for her to sit for prolonged periods at a time", and (2) her husband's "chronic back problem which is exacerbated if he sits for long periods of time".
I dispensed with the need for a Notice of Motion ("NOM"), with supporting affidavit - requirements of which the Registrar reminded them on 14 August 2018 - and referred Mrs Cmunt's "submission" to Council's solicitors.
On receipt of their response, the Court wrote to Mr and Mrs Cmunt on 27 August 2018, including the following pars:
His Honour understands the difficulties dealt with by the two unsworn medical certificates, but does not accept that there is a need to vacate the hearing. His Honour will view sympathetically any applications you may make to take an occasional short break in, and/or to stand, or even recline, during, the hearing, in order to relieve any physical discomfort.
The Council has indicated to His Honour that it will take no objection to your "standing throughout the hearing, or taking such other measures necessary to avoid 'prolonged siting' of the kind referred to in the certificates".
Communicating directly with the Respondents is never simple, but a senior Court officer managed to speak with Mrs Cmunt directly, on both 27 and 28 August 2018, regarding my decision to refuse the adjournment.
Mrs Cmunt advised the Court officer that both Respondents "would not be in attendance as they are unable to drive and are bed ridden with bronchitis", and that "if she attends Court she will die". The officer of the Court advised Mrs Cmunt that the Court would cancel the interpreter booked for the hearing, and she agreed that that was "fine as she definitely will not be in attendance". She confirmed on 28 August 2018 that the Respondents would not attend, "and the Court should not wait for either of them to attend". As noted by the Court officer:
She wanted to let the Court know that she spoke with her Doctor and that [her] condition is very serious.
The Court received no further medical certificate supporting her later contention, about bronchitis and being bedridden, so I proceeded with arrangements for the hearing.
In her "written submission" of 23 August 2018 (Exhibit C3) Mrs Cmunt said:
In case if the hearing will be made in our absence we would like to say the following:
Our case is on Appeal with the Court of Appeal on the basis of false accusation.
1. We are not and we were not the owners of the property 12 Kiparra Dr. Berridale.
2. The owner is the Trust. The Council knows it but ignores it.
3. We do not live in this property (we lived there only 2 years in 2014 and 2015).
4. The address 12 Kiparra Dr. Berridale is only the address for service for this case.
5. We are not the owners of the dogs and we know that from the beginning when the Trust brought this property there were no complaints about anything from the neighbours properties.
The Ranger never visited this property about barking complaints. The Court got with our Affidavit dated 31.7.2018 15 reports from the Ranger that in Kiparra Dr. are not any dogs. These reports were sent to the Court with our Affidavit 31.7.2018.
And from the year 2015 your Court got verification about the dismissal of the fines which was made by the Local Court in Cooma on the basis of false accusation with our Affidavit 31.7.2018.
There was and are complaints but not from the neighbours property and are not true.
There is no evidence for this. Property 12 Kiparra Dr. is under attack and it does not matter who lives there.
At the moment we are on the list and everything is made on the basis of personal reasons.
I have had regard to that "submission", and to her "affidavit" dated 31 July 2018, which deals largely with events predating the hearing before Preston J, namely in 2014-15.
To be fair to the Cmunts, I have also reviewed all the documentation they have submitted to the Court in this matter.
When I opened the Court on the 30th, I read on to the record much of what I have earlier explained about the run-up to yesterday's and today's proceedings, and Mr O'Gorman-Hughes, counsel for the Council, tendered Exhibits C1 to C3.
He referred the Court to the Court of Appeal's decision in AHB v NSW Trustee and Guardian [2014] NSWCA 40, in which Macfarlan JA was critical of the inadequacy of the medical certificate proffered in that case, which said only that AHB was "quite ill with influenza". His Honour said (at [4]):
... The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court.
and (at [5]):
... To obtain an adjournment a party is ordinarily required to attend Court and explain precisely why that adjournment is warranted. ...
and (at [6]):
... The Court will not permit its List to be disrupted in this way without good reason.
AHB was granted his adjournment, but was ordered to pay "costs thrown away"
I granted the Council leave to proceed ex parte, and to proceed on 30 August 2018, despite the listing of the appeal to the Court of Appeal for hearing in a little over two weeks later.
[2]
Service
There is overwhelming evidence before me that the Cmunts have consistently evaded service of Council and Court documents.
They are clearly still resident on the site, and they appear to take down served documents and respond to documents that require a response. For example, they entered pleas of NOT GUILTY to the contempt charge, when served (Bradbury 28 August 2018, pp7-8), but also sought to delay the case for three months on health grounds, and/or while their appeal was on foot.
The Council has been fastidious in seeking to keep its actions within the meaning and intent of provisions regarding service. Clause 9 of Part 55 of the Supreme Court Rules 1970 requires that contempt documentation (NOM/summons, Statements of Charge, and affidavits) "be served personally on the contemnor", and Council has been forced to rely on the following provisions of the Uniform Civil Procedure Rules 2005 ("UCPR"):
10.14 Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)
(1) If a document that is required or permitted to be served on a person in connection with any proceedings:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.
(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes:
(a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and
(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).
(4) Service in accordance with this rule is taken to constitute personal service.
...
10.19 Waiver of objection to service (cf DCR Part 8, rule 5 (3))
A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed.
...
10.21 How personal service effected generally (cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)
(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document.
(2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.
(3) Service in accordance with subrule (2) is taken to constitute personal service.
...
10.26 Personal service on person who "keeps house" (cf DCR Part 8, rule 13; LCR Part 7, rule 13)
(1) If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house:
(a) by doing one of the following:
(i) placing the document in the mail-box for the premises,
(ii) affixing the document to an outer door of the premises,
(iii) if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and
(b) within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.
(2) Service in accordance with subrule (1) is taken to constitute personal service.
The Council submits - and I accept - that it can properly be inferred by the Court that all of its material has come to the attention of the Cmunts, although Mr O'Gorman-Hughes conceded that the mandatory "24 hr letter" requirement of Rule 10.26(1)(b) may not have been totally honoured in respect of the most recent affidavits, which I find were served in accordance with 10.26(1)(a) (see Exhibits C5 to C8).
There is ample evidence before the Court that the Respondents have "kept house" (as defined in 10.26(1)(a)), and I embrace the course taken by Bellew J in Green v Healthscope Limited t/as The Hills Private Hospital [2014] NSWSC 43, in which His Honour said (at [40]):
... As I have previously outlined, there were a series of directions hearings in the District Court in 2012 at which the second defendant was not represented. Had there been evidence of an appearance on behalf of the second defendant at any of those directions hearings, that would obviously have supported the conclusion that the requirement for the operation of rule 10.14 had been made out (see for example WFM Motors Pty Limited v Maydwell (SC (NSW) Bryson J, 23 April 1993, unreported); Vista Capital Developments Pty Limited v Talmarc Pty Limited and ors [2008] NSWSC 935). However, even in the absence of that evidence, I am satisfied that steps were taken for the purposes of bringing the statement of claim to the notice of the second defendant.
At the outset of the hearing on 30 August 2018, the Council filed a NOM, which it later amended as to a few particulars, seeking, in its final form, the following orders:
1. Pursuant to r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005 (UCPR) service of this notice of motion is dispensed with.
2. Pursuant to UCPR 10.14(3) the Court directs that the Notice of Motion and Statement of Charge filed in these proceedings on 29 November 2017 are taken to have been served on the First and Second Respondents on 4 December 2017.
3. Pursuant to UCPR 10.14(3) the Court directs that the affidavit of Michael James Broder sworn 24 November 2017 and filed on 29 November 2017 is taken to have been served on the First and Second Respondents on 4 December 2017.
4. Pursuant to UCPR 10.14(3) the Court directs that the following documents are taken to have been served on the First and Second Respondents on 7 June 2018:
a. Affidavit of Gregory Foster made on 7 May 2018 and filed on 25 May 2018;
b. Affidavit of Alisyn Robinson made on 21 MAY 2018 and filed on 25 May 2018;
c. Affidavit of Kylie Veronica Mitchell made on 16 May 2018 and filed on 28 May 2018; and
d. Affidavit of Michael Broder made on 17 May 2018 and filed on 28 May 2018.
5. Pursuant to UCPR 10.14(3) the Court directs that the following documents are taken to have been served on the First and Second Respondent on 29 August 2018:
a. Affidavit of Michael Broder made on 27 July 2018 and filed on 7 August 2018;
b. Affidavit of Carlie Deans made on 31 July 2018 and filed on 7 August 2018; and
c. Exhibit MJB5.
6. Pursuant to UCPR 10.14(3) the Court directs that the Affidavit of Alan Anthony Bradbury made on 28 August 2018 is taken to have been served on the First and Second Respondent on 29 August 2018.
7. Pursuant to UCPR 10.14(3) the Court directs that each of the two Affidavits of Michael James Broder made on 29 August 2018 and Exhibits MJB6 and MJB7, is taken to have been served on the First and Second Respondent on 29 August 2018.
Orders 1 to 4 are clearly appropriate here, and may indeed be sufficient for Council's case, but I am also prepared, in the exercise of the Court's discretion, to make orders 5 to 7 (see Biscoe J in Burwood Council v Wanless [2013] NSWLEC 160).
[3]
The Evidence
The main Council witness is one of its regulation and compliance officers, Michael James Broder, and Council relies on several affidavits from him. Mr O'Gorman-Hughes also called him to give some supplementary oral evidence.
Among the materials presented by Broder was a series of video and audio files, featuring the Respondents and dogs, contained on several USBs (Exhibits MJB4 to 7 to his various affidavits).
Council ranger Gregory Alan Foster also gave evidence of his investigations between 16 February and 16 March 2018, which he summarised in a "barking diary".
Complaining neighbours Alisyn Robinson, Carlie Deans, and Kylie Veronica Mitchell also provided affidavits. Robinson was particularly affected by barking between 30 March 2018 and 3 April 2018 (the Easter Weekend), as late as 12:30am, and cannot keep her windows open because the noise is so loud.
All three women live very close to No 12. An aerial photo at p19 of Broder's affidavit 27 July 2018 shows their location relative to the Cmunts and one another.
Mitchell moved in early in 2018, and deposed, on 16 May 2018, to hearing barking "most days, multiple times per day", and to seeing as many as seven or eight dogs on site at a time. She often sees dogs fighting, and the Cmunts not seeking to "reprimand them". Dogs are sometimes left in the yard at night. She also kept a "barking diary", during April 2018, and is fearful of the dogs pushing down her boundary fence and attacking humans. The barking disturbs the studies of her son in Year 11.
Deans (as at 31 July 2018) had a 10 month-old baby and a son 2 years older. The sleep of both children was seriously disrupted over Easter 2018. Since April 2018 the barking has occurred "daily", and "nearly constantly". To her observation, there are between 1 and 20 dogs on site at a time. Deans has observed both the Cmunts "walking dogs and driving with dogs" in one of their cars.
Deans deposes (in [14]-[19]):
14 As far as I can tell, Mr and Ms Cmunt make little attempt to stop the dogs from barking. It appears to me that Mr and Ms Cmunt are away from home between 2 to 4 times a week, usually including Friday nights and all day on Sundays. When Mr and Ms Cmunt are away the noise from the dogs is worse.
15 When Mr and Ms Cmunt are home, the dogs will be quieter from approximately 10.00pm than if Mr and Ms Cmunt are away. I will still hear barking at this time, but not at the same level as when Mr and Ms Cmunt are not home.
Events of 25 July 2018
16 On 25 July 2018 I got home at approximately 5.00pm. The dogs were barking at that time. When I opened my front door, the dogs started barking more loudly.
17 At some point during the evening, I went to get something from my car, which was parked outside my house. This also caused the dogs to bark more loudly.
18 I run a fan in my baby's room to cover the noise of the dogs at night. At 10.30pm, I went to this room to switch the fan off. As I did so, I noticed the dogs were still barking, which had been a constant since at least 5.00pm.
19 The dogs continued to bark that evening. I do not know when they stopped barking, as I fell asleep.
She also deposes ([20]-[23], and [25]-[26]):
20 The dogs bark loudly at intermittent times during the day. I can hear the dogs barking when I am in my home and the noise of dogs barking has prevented me from putting my young children down to sleep during the day. On most nights I can hear the dogs barking from approximately 6pm to 10pm or later.
21 I have noticed that when I enter my backyard the dogs on the Premises begin to bark loudly. I am reluctant to use my backyard since it is so noisy when the dogs begin to bark. The noise from the dogs barking has prevented me from playing in my backyard with my children and has prevented my husband and I from hosting social gatherings at our house.
22 I have seen my neighbours, Mr and Ms Cmunt, walking dogs outside in Kiparra Drive. The presence of dogs at the Premises and in my street has made me concerned for my safety and the safety of my family. I am concerned that if the dogs were to get outside the backyard of the Premises they may harm my young children. I do not let my children play or ride their bikes outside of my house on Kiparra Drive and I do not walk with my child in a pram in my street as I am worried that the dogs may be outside the Premises and attack myself or my children.
23 I own a small dog that appears to be distressed by the presence of dogs on the Premises. I can tell my dog is distressed as I have noticed him whimpering when the dogs on the Premises begin to bark. I have tried to keep my dog inside my house so that he is not affected by the dogs at the Premises.
...
25 My husband and I are considering purchasing another property. Were we to do so, we would try to rent out our current property. However, I do not consider this a viable option at this stage because I do not think that we would be very successful in renting out our property while the dogs remain on the Premises.
26 I am further concerned that the dogs would affect our ability to sell our house and realise a good price, should we need to do so.
Clearly, at least three households are seriously affected by the presence of dogs on the Cmunt site, so close to their homes.
Broder relevantly deposed, in particular, to relevant correspondence involving Council, the Cmunts, the Court and the Council's solicitors, as well as:
1. a history of conflict between him and the Cmunts;
2. complaints received about dogs on the Cmunt property;
3. his many attempts at personal service of documents, and his many other visits to the Cmunt and neighbouring properties;
4. his observations on those occasions;
5. his practice of making a contemporaneous journal record of those events and observations, and also a recording, where possible; and
6. the regular failure of the occupants of the subject site to respond to him directly in any way when he attends their property.
In his affidavit 27 July 2018 he also explained (in par 42) the procedure Council will follow if the Court makes the substituted performance order sought.
Broder swore two affidavits on 29 August 2018.
One was what Mr O'Gorman-Hughes described as a "composite affidavit of service", which brought together his experiences in trying to communicate with the Cmunts in the context of the proceedings, especially the contempt phase of them. He observed (par 75) dogs on the Cmunt premises on 29 August 2018.
In his second affidavit of that date, Broder confirmed (by Title Search at p5) that, as at 27 August 2018, the subject site remained registered in the Respondents' names.
Council's solicitor Alan Bradbury arranged to have a letter, clearly marked "urgent", delivered to the Cmunts on 29 August 2018 by Council. Broder delivered it, with some other material at 6:45pm that evening, on his third visit to the site on that date.
The letter (Exhibit C9) confirmed the hearing fixed for 30-31 August 2018, and the advice the Court had given about the acceptability of "standing throughout the hearing or taking such other measures necessary to avoid 'prolonged siting' of the kind referred to in the certificates". It then noted that they had advised the Court they did "not intend to attend the hearing". The letter concluded:
The Council intends to proceed with the hearing whether or not you are present. However, you need to be aware that the proceedings can take place in your absence and that, if the Court finds you are guilty of contempt, you will be liable to potentially very serious penalties including substantial fines (which may include a daily penalty) or imprisonment. As we have previously informed you, if you are found guilty of contempt, the Council will also seek the making of an order permitting it to seize and remove any dogs kept at 12 Kiparra Drive Berridale, NSW 2628 whilst the premises are owned or occupied by you.
[4]
Consideration
It is three years since Council's first attempt to alleviate this "dog problem", and ten months since the possibility of charging contempt arose.
Disobedience of a Court order is contempt, but it must be proven to the criminal standard of proof: Witham v Holloway (1995) 183 CLR 525.
Contemnors must know of the order before they can be found guilty of breaching it: Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91.
Mrs Cmunt was present, by phone, when Preston J made his orders. The Court then wrote to her about them on 3 August 2017, and Broder served sealed copies on 14 and 15 September 2017. She has quoted the judgment and lodged an appeal, so I am satisfied she knows of the Court's order forbidding the keeping of dogs.
The Cmunts are clearly shown to have remained in continuous occupation of the subject site since the orders were made, and as recently as two days ago, and there have been regular sightings of dogs, and observations of barking.
What I have called the contempt documents were served on them, and, on 6 December 2017, both defendants signed, and faxed to the Court, "Written Notices", pleading Not Guilty.
The evidence clearly shows that they were aware of the Court's orders and have failed to comply with Order 2.
I have set out and applied the usual sentencing principles in contempt cases such as:
Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84;
Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136;
Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147;
and Camden Council v Rafailidis (No 4) [2014] NSWLEC 22
Convictions and fines and orders for costs are clearly appropriate in this case.
However, a primary objective of these proceedings is the termination of the offending behaviour.
I turn, therefore, to the substituted performance order sought by Council, but declined by Preston J.
His Honour noted at that time that the contempt course was preferable, but 12 months of disobedience of His Honour's orders has followed, and I agree with the submissions of Mr O'Gorman-Hughes that such an order is now appropriate.
I also agree with him that the Court should rely on s 23 of the Land and Environment Court Act 1979, rather than UCPR 40.8, in the present circumstances.
UCPR rule 40.8 provides:
40.8 Substituted performance (cf SCR Part 42, rule 9)
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.
Section 23 provides:
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.
The decisions of Pain J in Lismore City Council v Vivian [2016] NSWLEC 108, and of Preston J in Warrambungle Shire Council v Yongmei Ou [2018] NSWLEC 70 (at [71]), reassure me that I am taking the right course in this respect.
As Mr O'Gorman-Hughes says (subs 36), that is a "practical and proportionate response".
I turn then to the question of what fines to impose in upholding the effective administration of justice.
I consider the contempt to be serious and deliberate, and the harm to be substantial and unreasonable, and I can see no evidence of contrition.
There is a need for both general and specific deterrence, so the fines should be significant.
The possibility of re-offending can be addressed also by daily penalties.
There are no subjective factors to mitigate the seriousness of the penalty, and no evidence of means, but I have taken into account the Cmunts' ages and health challenges.
Not only have they defended the charges, Mrs Cmunt has been quite defiant in her correspondence to the Council and the Court (see MJB3 p55, and Bradbury p9), and has continued to keep dogs on the property since Beazley P refused to stay the order more than seven months ago.
While Mr Cmunt's behaviour has been "wilful", I consider Mrs Cmunt to be the prime mover in this contempt, and I find her conduct "contumacious". As Mr O'Gorman-Hughes submitted (subs 11), "she has demonstrated a "perverse and obstinate resistance to authority" and her disobedience has also been "wilful": see Sutherland Shire Council v Sawyer [2000] NSWLEC 162, at [77]-[78].
I propose that Mrs Cmunt be fined $15,000, and Mr Cmunt $5,000.
The substituted performance order I also propose will take effect in 49 days, allowing time for the pending appeal against Preston J's order to be heard.
Daily penalties of $1,500 and $500 respectively will apply after 60 days from today if dogs are discovered on the subject site.
Council does not seek an order for reimbursement of the costs it will incur, in seizing, removing, and subsequently dealing with, any dogs from the subject land.
[5]
Orders
The Court makes the following orders:
1. Marie Cmunt is convicted of the charge of contempt in the Statement of Charge dated 24 November 2017.
2. Jiri Cmunt is convicted of the charge of contempt in the Statement of Charge dated 24 November 2017.
3. Marie Cmunt is fined $15,000.
4. Jiri Cmunt is fined $5,000.
5. The Applicant Council is permitted, after 49 days, to seize and remove any dogs kept on Lot 21 DP250314, known as 12 Kiparra Drive Berridale, NSW 2628 ('the Premises') whilst the Premises are owned or occupied by the First Respondent or Second Respondent.
6. If after 60 days from the date of these orders, Marie Cmunt, is found to be keeping dogs on those premises contrary to Order 2 made by the Court on 3 August 2017, she is to pay a daily penalty of $1,500.
7. If after 60 days from the date of these orders, Jiri Cmunt, is found to be keeping dogs on those premises contrary to Order 2 made by the Court on 3 August 2017, he is to pay a daily penalty of $500.
8. The Respondents Marie Cmunt and Jiri Cmunt are ordered, jointly and severally, to pay the costs of the Council in these contempt proceedings, on a party-party basis, as agreed or assessed.
9. The Council's exhibits may be returned after the publication of these reasons.
10. The Council has liberty to apply on three days notice in respect of the working out of Order 5.
11. The Court notes that the Council in carrying out Order 5 is expected to follow the procedures to which Michael Broder deposed in paragraph 42 of his affidavit sworn 27 July 2018.
[6]
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: 04 September 2018