Strathfield Municipal Council v Malass

Texts Cited: Stephen Odgers, Uniform Evidence Law, nineteenth ed (Lawbook Co, 2024)

Category: Procedural rulings

Parties: Strathfield Municipal Council (Applicant)
S Malass (Respondent)

Representation: Counsel:
J Li (Applicant)
P Larkin SC and D Pittavino (Respondent)
Solicitors:
D Loether (Applicant)
C Shaw (Respondent)

File Number(s): 2021/00220120

Publication restriction: Nil

JUDGMENT

Introduction and background

1. On Tuesday, 26 May 2026 I heard a notice of motion brought by Strathfield Municipal Council (Council) seeking an order pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) enabling Council and its witnesses to access and inspect the premises of Sarah Malass (the respondent) at 27 Boden Avenue, Strathfield (the property), and an order permitting Council and its witnesses to take videos and photographs during the inspection.

2. On the same day, I made orders dismissing Council’s notice of motion. I now publish my reasons.

3. The orders sought in the motion were in relation to two charges of contempt filed against the respondent by statement of charge filed on 25 March 2026 (the statement of charge). The charges of contempt concern final orders made by Pain J on 4 April 2024, inter alia, that:

(a) the respondent, her servants, tenants, agents, and any other person occupying the property are to vacate the property within ten months from the date of the orders (the order to vacate); and (b) the respondent, by herself, her servants, tenants or agents are to demolish any building or part of a building on the property that has been unlawfully erected and is non-compliant with the approved plans pursuant to Development Consent number DA2017/091 issued by Council on 22 November 2017 and Constructions Certificate number 2018/144 issued by an accredited certifier within twelve months from the date of the orders (the o****rder to d****emolish) (collectively, the orders).

4. The order to vacate was required to be complied with by 4 February 2025. The order to demolish was required to be complied with by 4 April 2025. An application to vary the orders was dismissed by Pain J on 4 July 2025. [1]

5. In the statement of charge, the respondent is charged with two counts of contempt of court, comprising:

(a) an allegation that the respondent contravened the order to vacate made by Pain J on 4 April 2024 by “[f]ailing to vacate the property at 27 Boden Avenue, Strathfield by 4 February 2025, and failing to cause other occupants of the property to vacate the property by that date” (c****harge 1); and (b) an allegation that the respondent contravened the order to demolish by “[f]ailing to demolish … any building or part of a building that has been unlawfully erected and is non-compliant with the approved plans pursuant to Development Consent number DA2017/091” issued by the applicant Council on 22 November 2017 (c****harge 2).

6. Charge 1 is particularised as follows:

(a) the respondent, and her servants, tenants, agents, and any other person occupying the property were ordered to vacate the property within ten months of 4 April 2024; (b) the respondent failed personally to vacate the property within that timeframe, and to cause the others described in the order to vacate the property within that timeframe; (c) the respondent failed so to act in contempt of court on 5 February 2025; (d) that contempt was continuing as at the date of the statement of charge.

7. In a similar manner, charge 2 is particularised as follows:

(a) the respondent was ordered to demolish any building or part thereof on the property that was unlawfully erected and non-compliant with the relevant development consent within 12 months of 4 April 2024; (b) the respondent has not effected any such demolition within that timeframe; (c) the respondent failed to do so in contempt of court on 5 April 2025; and (d) that contempt was continuing as at the date of the statement of charge.

8. In a letter dated 1 May 2026, the respondent’s legal representatives corresponded with Council’s legal representatives in the following terms:

1. We refer to your letter dated 30 April 2026, and confirm service of the Affidavits named therein (Evidence).

2. We note this Evidence follows our letter of 28 April 2026, putting Council on notice that we were expecting to receive Council’s evidence necessary for us to take instructions in conference with our Client and our Counsel for the purpose of considering plea and timetable.

3. So that we may take final instruction as to a plea and timetable for evidence in reply please confirm, by close of business on Monday 4 May 2026, that the Evidence served is the totality of the evidence Council will be relying on in support of the Charges in the Notice of Motion as filed on 25 March 2026.

4. The timing is critical as we have scheduled a further conference concerning these matters with our Client and Counsel on Tuesday 5 May 2026.

9. On the same day at 1:47pm, Council’s legal representatives responded in the following terms:

We refer to your letter dated 1 May 2026.

We confirm that the evidence filed by the Applicant on 28 and 29 April 2026, being the three affidavits with supporting annexures and exhibits referred to in our letter 30 April 2026, comprise the totality of evidence to be filed by the Applicant.

However, the Applicant reserves its right to seek orders to file evidence in reply, in response to any evidence in reply filed by the Respondent.

10. The evidence which had been filed by Council and which its legal representatives contended comprised the totality of the evidence to be filed by it consisted of an affidavit of Mahfuzul Khan dated 28 April 2026, an affidavit of Stephen Catsicas dated 29 April 2026, and an affidavit of Council’s solicitor Dennis Andy Loether dated 28 April 2026.

11. Mr Khan, a senior regulatory officer at Council, deposed to an inspection at the property he conducted on 16 April 2026 while he sat in the passenger seat of a vehicle driven by a ranger employed by Council. Mr Khan annexed to his affidavit two photographs he took during that inspection. Mr Catsicas, a senior investigator who provides surveillance investigation services to Huxley Hill Group, deposed to surveillance of the property he undertook on 26 September 2025, 27 September 2025, 1 October 2025 and 2 October 2025, and to his observations during that surveillance. He annexed to his affidavit photographs and videos he took and a report summarising his surveillance of the property. Mr Loether deposed to the background of the proceedings, and the surveillance of the property by the Huxley Hill Group.

12. On 8 May 2026, at a directions hearing before Pain J, the respondent pleaded not guilty to the charges.

13. At the directions hearing on 8 May 2026, Pain J also directed:

(a) the respondent to file and serve her evidence, if any, by 20 May 2026; (b) the applicant to file and serve any of its evidence in reply by 27 May 2026; and (c) the applicant to serve any updating evidence by 27 May 2026.

14. On 20 May 2026, Council wrote to the respondent as follows:

We write to put the Respondent on notice that the Applicant … intends to update its evidence to include further information in relation to:

1. Whether the Respondent has vacated the property …;

2. Whether the Respondent has caused other occupants to vacate the Property; and

3. Whether the Property has been demolished.

For the purpose of preparing that evidence, the Applicant requires access to the Property to investigate whether the building or any part of it has been demolished. Further, the Applicant requires access to investigate whether the Property has been vacated.

… we require your urgent consent to grant access to undertake those investigations. Such access is to be provided on 48 hours’ notice. Please respond by COB Wednesday 20 May 2026, failing which we will seek an order pursuant to UCPR r 23.8.

15. The motion for contempt has been set down for hearing on 4 and 5 June 2026.

Council’s motion for inspection of the property

16. In accordance with the orders made by Pain J on 8 May 2026, Council was due to file any updating evidence by 27 May 2026. For that purpose, Council sought access to the property. As set out above, by notice of motion filed on 21 May 2026, Council sought, inter alia, the following orders:

17. an order pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW), enabling it, and its servants, agents, legal representatives and the witnesses it has retained in the proceedings, to access the property upon the giving of 24 hours’ notice to the respondent’s legal representatives; and

18. an order permitting any person so accessing the property to take videos and photographs during the inspection.

19. Council contended that updating evidence was necessary to prove that the contempt the subject of the charges is continuing.

20. The respondent, through her solicitors, refused to provide access to her property for the purpose of inspection.

21. On 26 May 2026, I made orders dismissing Council’s motion for inspection of the property.

UCPR r 23.8 and s 169 of the Evidence Act 1995

20. In its motion for inspection of the property, Council sought an order pursuant to UCPR r 23.8. Those rules apply to contempt in civil proceedings, [2] even if the contempt can be described as criminal in nature. [3]

21. Rule 23.8 provides in relation to the inspection of any property for the purpose of enabling the proper determination of any matter in question in any proceedings:

“23.8 Inspection of property

(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following—

(a) the inspection of any property …

(2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

…

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

…

(6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.”

22. As subrule (4) makes clear, the Court’s power to order an inspection of, for example, land, is conditioned upon “sufficient relief” not being available under s 169 of the Evidence Act 1995 (NSW). I consider s 169 of the Evidence Act and its relationship with UCPR r 23.8 below.

Evidence

23. In support of its motion for inspection of the property, Council read the affidavit of its solicitor Dennis Andy Loether sworn 21 May 2026 in which Mr Loether sets out the procedural background to the motion. At [13] to [15] of his affidavit, Mr Loether deposes that:

[13] The Applicant has already filed evidence in support of the Charges, namely:

1. Affidavit of Dennis Andy Loether filed 28 April 2026;

2. Affidavit of Mahfuzul Khan filed 28 April 2026;

3. Affidavit of Stephen Catsicas filed 29 April 2026.

[14] The Applicant now seeks access to the Property to confirm that the matters the subject of the Charges are continuing.

[15] Accordingly, the Applicant requires access to inspect the Subject Property to obtain observational evidence as to:

1. whether the building on the Subject Property has still not been demolished to any extent; and

2. whether the Respondent has not yet caused other persons to vacate the Subject Property. Evidence relevant to that issue would include whether the Subject Property contains any chattels that are inconsistent with the Subject Property being vacated.

24. The respondent read the affidavit of her solicitor Yustin Ashley Koprivnjak, also setting out relevant procedural background. That background includes correspondence and orders made in relation to the filing of the Council’s evidence in support of the motion and the statement of charge. Mr Koprivnjak refers, in particular, to the following sequence of events:

25. on 10 April 2026, Pepper J ordered that Council file and serve its evidence by 17 April 2026;

26. as at 20 April 2026, Council had served no evidence, and on that date sought an extension for the filing of its evidence because its counsel was on leave and would not be able to review and settle the evidence;

27. on 21 April 2026, Mr Koprivnjak informed Council’s solicitors that it was “critical” to have Council’s evidence by 24 April 2026 to ensure that he had reasonable opportunity to take instructions;

28. as at 25 April 2026, Council had still served no evidence, and on that date Mr Koprivnjak emailed Council’s solicitors raising that further delay would cause the respondent to incur necessary cost;

29. as at 9:30am on 28 April 2026, Mr Koprivnjak had received no response to his email of 25 April 2026, and later that morning sent a letter to Council’s solicitors in relation to Council’s delay;

30. at 4:25pm on 28 April 2026, Council’s solicitors served two affidavits by email, and at 1:07pm the next day served a third affidavit;

31. On 1 May 2026, Mr Koprivnjak sent a letter to Council’s solicitors to confirm that the three affidavits filed together constituted the totality of Council evidence, and Council’s solicitors responded that the evidence filed comprised “the totality of evidence to be filed by the Applicant”, but that Council “reserves its right to seek orders to file evidence in reply, in response to any evidence in reply filed by the Respondent”;

32. On 7 May 2026, the parties emailed the Court in relation to the orders to be made having regard to the respondent’s plea of not guilty, and neither “the orders prepared for the applicant nor the respondent considered any direction for updating evidence”; and

33. On 8 May 2026, before Justice Pain, counsel for Council sought, for the first time, an additional order for updating evidence.

Council’s submissions

25. Council submitted that as the respondent had pleaded not guilty to the charges, it sought access to the property to adduce evidence that the Orders had not been complied with. Adducing evidence as to those matters will enable their proper determination by the Court. In that regard, that Council has the onus of establishing the facts in the charges was submitted not to be not relevant to the application of UCPR r 23.8. In Sader, Ward P (with whom Meagher JA and Simpson AJA agreed) at [66] to [67] rejected an argument to the contrary:

[66] As to the second basis of complaint, there is more force. Her Honour appears to have accepted that it was relevant to the exercise of the discretion whether to grant access that the applicants bore the onus of proof in respect of the contempt allegations. Undoubtedly, the applicants bear the onus of proof; and, in the case of contempt allegations, that burden is not lightly discharged. But the question of onus is not relevant to whether to grant an application for access to the Property (that being an application no doubt intended by the applicants to assist in them meeting their onus). The primary judge appears to have accepted the first respondent’s submissions (repeated with no little emphasis on the appeal) in this regard, to the effect that, as it was for the applicants to establish the contempt (and they had initiated the contempt application on the basis of the evidence served prior to the first respondent’s affidavit), they should not be permitted to test the evidence served by the first respondent. That proposition need only be stated to be rejected. The fact that a party bears an onus of proof (whether in civil or criminal proceedings) says nothing as to how that onus may be discharged.

[67] The position of the first respondent here seems to be that the applicants should be restricted (in seeking to prove the serious contempt allegations they make) to the evidence served by them at the time they adduced the first applicant’s affidavit. There is no basis for such a contention if it be as broadly stated as that.

26. Similarly here, Council submitted, it seeks to discharge its onus by adducing evidence of ongoing non-compliance with the orders: “How it goes about doing so may include an application such as the present, as the decision in Sader v Elgammal makes clear”. As Ward P concluded in Sader at [84]:

[84] In the present case … an order for access to the Property only for the purpose of an inspection does not require the first respondent to assist in identifying any incriminating material (such as the existence of part or all of the slabs that were required to be demolished). It simply renders lawful what would otherwise be a trespass to property by the person carrying out the inspection.

27. Thus, Council submitted, in overturning a decision of Pain J in which her Honour refused access under UCPR r 23.8, the Court of Appeal in Sader concluded that the privilege against self-exposure to penalty does not arise in the case of an access order, despite the subject matter being contempt proceedings. It was also no answer, Council submitted, that Council had indicated that its evidence in chief was complete. The respondent had pleaded not guilty to the charges and so Council was being put to strict proof. Council should be able to adduce evidence as to whether the contempt alleged in the charges was continuing by way of updating evidence. Further, there could be no prejudice to the respondent. Restricting Council to the evidence it has already adduced “ignores the conclusion in Sader v Elgammal at [67] …, as well as the fact the Charges are serious ones”. The respondent would also have time to consider her position once any updating evidence was filed.

28. As to the form of the orders, Council submitted that this is now the third application in these proceedings relying on UCPR r 23.8. [4] In light of that history, the orders in the notice of motion sought access to be in the company of Council’s legal representatives. That, Council submitted, ought to ensure the access is carried out “without any undue friction between the parties”. Council also referred to the reasons of Pepper J in Malass 2022 where her Honour said at [34]:

[34] There is no doubt that in order to finalise its evidence for the purpose of the sentence hearing, the Council requires further access to the property to inspect it in order to ascertain the state of the works, if any, that have been carried out by Malass since the contempt charges were laid. The Council seeks to assert that the contempt has not been purged, on the contrary, it alleges that the contempt has continued and that further unlawful development has taken place. It is entitled to make such an allegation, and therefore, it is entitled to obtain evidence to prove it. To reiterate, this can only be done by comparing the state of the property at the time the charges were laid with its current state. This necessitates a fulsome inspection of the property by it. In my opinion, the inspection that was carried out by the Council on 25 August 2022 was inadequate because of the conduct by Malass, through the actions of Rabi Malass, which hindered the Council in its performance of the inspection by reason of the truncation of time and the limited access afforded to the Council to all areas of the property.

Respondent’s submissions

Discretion

29. Even assuming that the power to order inspection were available in this case (which, the respondent submitted, it was not), the respondent submitted that as a matter of discretion the motion should be dismissed because:

(a) it was inconsistent with Council’s unequivocal statement to the respondent’s legal representatives that it had filed and served all of the evidence (save for any evidence in reply) upon which it wished to rely, such statement having been made prior to the respondent entering her pleas; (b) it was unduly oppressive in circumstances where it was filed after the deadline for the respondent to file and serve any evidence in defence of the charges had passed so as to prevent her from properly responding to the underlying application for contempt; (c) it was also unduly oppressive as it resulted in a risk, if not a probability, that the substantive hearing would have to be vacated which would lead to the questions of the respondent’s guilt or innocence remaining unresolved; (d) it was attended by an inadequate explanation by Mr Loether, namely, to “confirm that the matters the subject of the Charges are continuing”. That was so, notwithstanding that Council chose to institute its application at the time that it did based upon all of the evidence it claimed was needed to support the charges; and (e) the additional evidence that Council wishes to obtain is irrelevant in any event to the contempt as particularised which extended, at its highest, to a continuation of Charges 1 and 2 to the date of the statement of charge. The respondent was not obliged, and harboured no intention, to meet a case of contempt other than the one strictly pleaded and particularised against her. [5]

30. Further, the respondent submitted, in making any orders of a procedural nature, s 58(1) of the Civil Procedure Act 2005 (NSW) (CPA) provides that the Court “must seek to act in accordance with the dictates of justice”. By reason of s 58(2)(a), that includes the mandates in ss 56 and 57. In this case, the process proposed by Council:

(a) was not quick, given the unacceptable and unexplained delay and also because of its lateness, with the consequential likelihood of the need for an adjournment; (b) was not cheap as it would undoubtedly lead to a second round of evidence with substantially increased costs; and (c) it was not just, given all the circumstances referred to in paragraph [29] above. [6]

The respondent’s failure to comply with the request was not unreasonable

31. The respondent referred to s 169(1) of the Evidence Act, set out above, which empowers the Court to order a party to comply with a request where that party has failed or refused to do so “without reasonable cause”, and to subsection (5) which identifies the matters that the Court may take into account in determining whether a party in the position of the respondent has so failed or refused without reasonable cause. Those matters include:

(a) the importance of the evidence in relation to which the request was made (para (a)); (b) whether there is likely to be a dispute about the matter to which the evidence relates (para (b)); (c) whether there is reasonable doubt about the authenticity or accuracy of the evidence to which the request pertains (paras (c) to (d)); (d) whether compliance would cause undue expense or delay or would not be reasonably practicable (para (g)); and (e) the nature of the proceedings (see para (h)).

32. Here, the respondent had not refused Council’s request without reasonable cause having regard, in particular, to:

(a) the delay in bringing the motion which was unattended by any explanation by Council; (b) the likelihood that any “updating” “observational evidence” would cause a vacation of the hearing dates, thereby postponing the determination of the respondent’s guilt or innocence of the charges levied against her; and (c) Council’s overt assurance to the respondent, prior to the entry of her pleas of not guilty, that it had filed and served the “totality of the evidence”, save for evidence in reply, upon which it intended to rely.

Abuse of process

33. The respondent also submitted that the motion should be dismissed as an abuse of process, referring to the well-settled principles in relation to the Court’s ability to protect the integrity of its own processes. [7] In PNJ v The Queen [8] (PNJ), French CJ, Gummow, Hayne, Crennan and Kiefel JJ observed at [3] that:

[3] It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court’s processes for an illegitimate or collateral purpose;

(b) the use of the court’s procedures would be unjustifiably oppressive to a party; or

(c) the use of the court’s procedures would bring the administration of justice into disrepute.

34. The respondent submitted that the characteristics referred to by the plurality in PNJ were not to be understood as “closed categories” that exhaust the “doctrine of abuse of process [which] has repeatedly been recognised to be insusceptible of a formulation which would confine it”. [9] Such abuse may result from the “failure to take, as well as the taking of, procedural steps” [10] in proceedings. When considering “what amounts to injustice” in a particular case, it “is the nature of the proceedings, not their formal classification” as civil or criminal proceedings “that is important”. [11]

35. Accepting that the onus resting on a party alleging an abuse of process is a “very heavy” [12] one, Council’s motion, in the respondent’s submission, answered that description. The respondent referred in particular to the following matters. First, the relief sought in the motion was submitted to contradict the explicit assurance given by Council’s legal representatives in their letter of 1 May 2026 sent at 1.47pm to the respondent’s legal representatives that Council had filed and served all the evidence in chief upon which it would seek to rely to establish the charges, and upon which, in part, the pleas were based. It would be entirely unfair to the respondent to permit Council now to resile from its assurances that that evidence represented “the totality of evidence to be filed by” it on the contempt application, especially so close to the substantive hearing. The possibility that the respondent might choose to contest charges 1 and 2 must have been obvious to Council at the time it made those representations and assurances.

36. Secondly, and relatedly, the respondent submitted that Council knew at all relevant times that the deadline for the respondent to file and serve any evidence in her defence was 20 May 2026. That deadline has now passed. The evidence sought to be adduced pursuant to the orders sought in the motion, at least on the timetable as it stood, would go without reply by the respondent. There was no explanation for Council’s delay. The motion had, in that context, been brought too late in the day. In Sader at [108], the Court (Ward P, Meagher JA and Simpson AJA agreeing) observed that delay was not a relevant consideration in the matter before their Honours because the hearing date had been vacated. However, the President confirmed at [108] that, in principle, delay in the making of an access application is “no doubt a relevant consideration”. In this case, the respondent submitted, it ought be decisive. That the inspection may well jeopardise the final hearing on 4 and 5 June 2026 was a factor that must, in accordance with sections 56 to 60 and 66 of CPA, weigh against granting the applicant’s application. [13]

37. Thirdly, and relatedly, the explanation given by Council for seeking access to the property, and seeking to photograph and video record its contents, was inadequate. Mr Loether deposed that Council had: already filed evidence in support of the charges, namely: 1) the affidavit of Dennis Andy Loether filed on 28 April 2026; 2) the affidavit of Mahfuzul Khan filed on 28 April 2026; and 3) the affidavit of Stephen Catsicas filed on 29 April 2026. Mr Loether deposed that the applicant now sought “access to the Property to confirm that the matters the subject of the Charges are continuing”.

38. Further*,* Mr Loether deposed that Council required access to inspect the property to obtain observational evidence as to: 1) whether the building on the property had still not been demolished to any extent; and 2) whether the respondent has not yet caused other persons to vacate the property, and that evidence relevant to that issue would include whether the property “contains any chattels that are inconsistent with the Subject Property being vacated”. It was submitted to be a striking feature that, having charged the respondent with contempt for failing to carry out demolition of part of the building (charge 2), having stated that its evidence was complete, and seeking to imprison the respondent on that basis, that Council now claimed that it required access to gain evidence that “the building ... has still not been demolished to any extent”. Mr Loether provided no explanation as to (a) why his office represented to the respondent that the evidence referred to at [13] of his affidavit comprised the “totality of evidence” that Council would file on its application that the respondent be punished for contempt of court; (b) why Council elected to plead and particularise charges 1 and 2 as continuing in nature to the date of the statement of charge, in circumstances where, according to Mr Loether, evidence was “require[d]” to prove that allegation; (c) why the application was not brought much earlier, before the entry of the pleas; and (d) why the instant application was not brought much earlier, in circumstances where the applicant had previously defaulted in complying with the deadline to file and serve its evidence.

39. Fourthly, it was elementary that on an application that a person be punished for contempt of court, an accused contemnor is entitled to hold her prosecutor to a “precise formulation of the charge[s]” levied against them. As Lee and Finn JJ observed in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [14] at [30] to [32]:

[30] It has long been accepted that a person should not be punished for contempt unless the specific charge against him or her be distinctly stated and an opportunity of answering it given to that person (Coward v Stapleton (1953) 90 CLR 573 at 579-580). “[T]his principle must be rigorously insisted upon” (Coward v Stapleton at 580; Doyle v The Commonwealth at 516). It is reflected in O 40 r 6 and r 8 of the Federal Court Rules which require that, on a proceeding for punishment of an alleged contempt a statement of charge “specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application” and that the “notice of motion or application, the statement of charge, and the affidavits [in support of the application] shall be served personally on the accused person”.

[31] The requirement that the statement of charge specify the contempt alleged is so as to allow the accused person to know the case he or she has to meet and to defend (Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64 at 73; see also; Cotroni v Quebec Police Commission (1977) 80 DLR (3d) 490 at 497 “Precision is necessary if the accused is to be able to defend himself effectively”). The vehicle most commonly used to specify the conduct relied on to support the charge laid is the provision of appropriate particulars in, or annexed to, the statement of charge itself … If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency (Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683).

[32] Unless and until an application is allowed to alter a particularised statement of charge, the accused is entitled to insist that he or she is only required to meet the charge as made. As was observed by Evatt and Deane JJ in Australian Building Construction Employees’ & Builders Labourers’ Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206-207:

“The transcript indicates that senior counsel for the appellants made clear that objection was taken to any departure by the respondents from the charge of contempt as particularized in the statement of charge. The question whether the particularized statement of charge was adequate was adverted to by senior counsel for the respondents but no application was made to amend it and it remained unaltered in the form set out above. In these circumstances, the appellants were entitled to conduct their case on the basis that the only charge which they were required to meet was that which had been particularized against them. It is not for an appellate court to speculate whether, if the charge against a particular appellant had, either initially or by amendment, been differently framed or particularized, the evidence adduced would have been the same or the conduct of the particular appellant’s case would have been unaltered.”

The decision in Sader

40. Properly understood, the respondent submitted, the decision in Sader does not favour the grant of the relief sought in the motion.

41. At least the following factors were submitted to distinguish Sader:

(a) In Sader the power given by UCPR r 23.8 was available; (b) there was no indication given by the appellants in that case that the evidence to be relied upon in support of the proof of the charges had been completed prior to the application for access pursuant to UCPR r 23.8 being brought; (c) there was no likelihood that the trial dates would have to be vacated as a result of the application, in circumstances where the institution of proceedings before the Court of Appeal had seen the proceedings vacated; (d) the evidence that the appellants sought to obtain was not, on its face, irrelevant to the charges of contempt as formulated and particularised; and (e) there had been no recent service of evidence by the respondent leading to a relevant change in the evidentiary contest.

42. Here, any “observational evidence” as to whether the contempt the subject of charge 1 and/or charge 2 is continuing now was irrelevant to the statement of charge as formulated and particularised. It had not been alleged that the contempt with which the respondent stands charged had continued from the date of first commission to the present, and the respondent was under no obligation to answer a claim that the “matters the subject of the Charges are continuing”.

Consideration

43. First, in relation to the respondent’s reliance on s 169 of the Evidence Act, I accept, as submitted by Council, that s 169 is not an available source of power to grant the relief sought by Council here.

44. Section 169 of the Evidence Act, headed “Failure or refusal to comply with requests” is in Chapter 4 Division 1, Part 4.6 of the Act. Part 4.6 contains ancillary provisions in relation to requests to produce documents or call witnesses. Division 1 contains provisions (ss 166 to 169) setting up a procedure designed to give procedural protection to parties against whom evidence may be adduced or admitted as a result of the abolition of the best evidence rule, and the abolition of the rule in Hollington v Hewthorn: [15] Odgers, Uniform Evidence Law, nineteenth ed, at [EA.Ch.4.Pt.4.6.30]. In s 166, “request” is relevantly defined as:

166 Definition of request

In this Division—

Request means a request that a party (“the requesting party”) makes to another party to do one or more of the following—

(a) to produce to the requesting party the whole or a part of a specified document or thing,

(b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing,

(c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing,

(d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time,

(e) in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary—to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept,

(f) in relation to evidence of a previous representation—to call as a witness the person who made the previous representation,

(g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92 (2) applies—to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

45. Section 167 provides that requests may be made about certain matters:

167 Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to—

(a) a previous representation, or

(b) evidence of a conviction of a person for an offence, or

(c) the authenticity, identity or admissibility of a document or thing.

46. Section 168 specifies time limits for making certain requests:

168 Time limits for making certain requests

(1) If a party has given to another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request to the party relating to the representation if the request is made within 21 days after the notice was given.

(2) Despite subsection (1), the court may give the other party leave to make a request relating to the representation after the end of that 21 day period if it is satisfied that there is a good reason to do so.

(3) If a party has given to another party written notice of its intention to adduce evidence of a person’s conviction of an offence in order to prove a fact in issue, the other party may only make a request relating to evidence of the conviction if the request is made within 21 days after the notice is given.

(4) Despite subsection (3), the court may give the other party leave to make a request relating to evidence of the conviction after the end of that 21 day period if it is satisfied that there is good reason to do so.

(5) If a party has served on another party a copy of a document that it intends to tender in evidence, the other party may only make a request relating to the document if the request is made within 21 days after service of the copy.

(6) If the copy of the document served under subsection (5) is accompanied by, or has endorsed on it, a notice stating that the document is to be tendered to prove the contents of another document, the other party may only make a request relating to the other document if the request is made within 21 days after service of the copy.

(7) Despite subsections (5) and (6), the court may give the other party leave to make a request relating to the document, or other document, after the end of the 21 day period if it is satisfied that there is good reason to do so.

47. Section 169 provides as follows in relation to a failure or refusal to comply with a request:

169 Failure or refusal to comply with requests

(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders—

(a) an order directing the party to comply with the request,

(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166,

(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence,

(d) such order with respect to adjournment or costs as is just.

(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.

(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with.

(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if—

(a) the document or thing to be produced is not available to the party, or

(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or

(c) the person to be called as a witness is not available.

(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account—

(a) the importance in the proceeding of the evidence in relation to which the request was made, and

(b) whether there is likely to be a dispute about the matter to which the evidence relates, and

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and

(e) if the request relates to evidence of a previous representation—whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and

(f) in the case of a request referred to in paragraph (g) of the definition of request in section 166—whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and

(h) the nature of the proceeding.

48. In Trimcoll Pty Ltd the Deputy Commissioner of Taxation [16] Basten JA (Spiegelman CJ and Ipp JA agreeing) said at [22]:

22. Part 4.6, Division 1, was primarily intended to provide certain procedural protections to a party whose interests might be adversely affected by the broader scope provided by the Evidence Act for the admissibility of documents which are not originals or which might previously have been rejected as offending the rule against hearsay and not falling within any relevant exception: see The Law Reform Commission (Cth), Report No. 26 Interim Evidence (AGPS, 1985) pars 343, 648, 658 and 707, and see Anderson, Hunter & Williams, The New Evidence Law (2002, Lexis Nexis) at pp 579-580. One question raised on this appeal is whether the relevant provisions are so confined or whether they have a broader operation.

49. At first instance, [17] Hall J had explained at [50] that:

In so providing, Division 1 affords a measure of protection against documents or other records being accorded the evidential significance that they may otherwise carry on their face where the circumstances of the supply of information contained within them or attending the making of them or both (or the representations they evidence) indicate a reason to question or dispute what the records would otherwise establish or tend to establish.

50. In Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd, [18] where a cross-defendant engineer sought orders for the invasive testing of building works in relation to tennis courts owned and operated by Council, Rees J said at [27]:

27. As to whether sufficient relief is available under s 169 of the Evidence Act, the Court may make an order directing the Council to comply with a request to permit the engineer “adequately and in an appropriate way, to examine, test or copy the whole or part of a specified document or thing”: Evidence Act, ss 166(b), 169(1)(a). I suppose the tennis court concrete slabs and the underlying material may be regarded as “a specified document or thing”, but such an order would go beyond the legislative purpose of the provisions. That purpose is to permit a party, against whom evidence is sought to be tendered, to challenge that evidence. The purpose is not to obtain further evidence of a different kind than that sought to be tendered against it. As such, I consider that the order sought by the engineer goes beyond the relief available under s 169 of the Evidence Act.

51. At [29] Rees J concluded:

The engineer sought that orders be made under s 169 of the Evidence Act, or alternatively, under r 23.8 of the UCPR. The Council submitted that s 169 of the Evidence Act did not apply. I agree. Section 169 of the Evidence Act is directed to a different problem. The Council is not seeking to rely on test results, which the engineer wants to question before they are admitted into evidence. The Council does not have test results at all. The engineer simply wants to undertake invasive testing to provide an evidentiary basis for its defence of the cross-claim. The provisions in Pt 4.6, Div 1 of the Evidence Act are not apposite. The power to order such testing is amply conferred by r 23.8.

52. Likewise, here I consider that s 169 is directed to a different problem than that in relation to which Council seeks relief, and that the provisions in Part 4.6 of the Evidence Act are not apposite. The power to order access is relevantly conferred by UCPR r 23.8. Accordingly, I will consider whether to exercise the power in r 23.8 to grant the relief sought by Council in its motion for inspection of the property.

53. Contrary to the respondent’s submission, I do not accept that the power to order inspection is not available in this case. I am satisfied that it is within the power of the Court to make an order for inspection pursuant to rule 23.8 of the UCPR for the purpose of enabling “the proper determination of any matter in question in any proceedings”, namely, whether the respondent is guilty of the two counts of contempt as charged in the statement of charge.

54. However, in the exercise of the Court’s discretion, I decline to make the orders sought in Council’s motion for inspection which seeks to enable Council and its witnesses to access and inspect the property, and permit them to take videos and photographs during the inspection. My reasons are as follows:

55. The relief sought in the motion is inconsistent with Council’s unequivocal statement in writing to the respondent’s legal representatives that it had filed and served all the evidence (save for any evidence in reply) upon which it wished to rely.

56. That unequivocal statement was made prior to the respondent entering her pleas, and after numerous defaults by Council in complying with deadlines to file and serve its evidence.

57. The matter of “updating evidence” arose at the directions hearing before Pain J only after the pleas had been entered.

58. The motion for inspection of the respondent’s property was filed after the deadline for the respondent to file and serve any evidence in defence of the charges.

59. No adequate explanation for the late service of the motion was provided by Council’s legal representatives, Mr Loether stating that the evidence was sought to “confirm that the matters the subject of the Charges are continuing”. However, the evidence sought belatedly to be obtained was evidence from inside the respondent’s property. The evidence which Council had earlier filed in the form of affidavits of Mr Khan and Mr Catsicas was not from inside the respondent’s property. No explanation was provided as to why the relief sought in the motion for inspection could not have been sought prior to the Council finalising its evidence and assuring the respondent on 1 May 2026 that it had filed and served the “totality of the evidence”, save for evidence in reply, upon which it intended to rely. Council’s delay was wholly unexplained.

60. Acceding to the motion would result in an appreciable risk of the respondent seeking to put on evidence to meet the “updating” evidence, and the substantive hearing set down for 4 to 5 June 2026 being vacated.

61. Having decided to dismiss Council’s motion in the exercise of the Court’s discretion for the foregoing reasons, I am not persuaded that the motion constitutes an abuse of process.

Orders

56. The Court orders that:

57. The notice of motion filed 21 May 2026 is dismissed.

**********

Endnotes

Strathfield Municipal Council v Malass [2025] NSWLEC 70.

Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 at [17] (Beazley P, Meagher JA and Simpson AJA); Sader v Elgammal (2024) 113 NSWLR 394; [2024] NSWCA 20 (Sader) at [85] (Ward P); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [33] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [43] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

The earlier two being the decisions of Pepper J in Malass v Strathfield Municipal Council [2022] NSWLEC 116 (Malass 2022) and of Pain J in Strathfield Municipal Council v Malass [2021] NSWLEC 112 (which was subsequently the subject of orders for contempt).

See Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155 at [32] (Tamberlin, North and Dowsett JJ).

See S&P Gomes Pty Ltd v Sundar [2026] NSWCA 85 at [26] (Harrison AJA, Payne and Free JJA agreeing).

See Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos) at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] (French CJ, Bell, Gageler and Keane JJ); M & S Investments (NSW) Pty Ltd v Affordable Demolitions & Excavations (No 3) [2025] NSWLEC 30 at [111]–[119] (Pain J); Blue Mountains City Council v Koprivnjak (2003) 127 LGERA 188; [2003] NSWLEC 158 at [19] (Cowdroy J).

(2009) 83 ALJR 384; [2009] HCA 6.

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [72] (Gageler J); Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 at 255 (Mason CJ).

Batistatos at [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 26 (Mason CJ).

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).

Kurvest Pty Ltd v Sutherland Shire Council [2020] NSWLEC 96 at [7]–[10] (Robson J).

[2001] FCA 1758.

Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35.

[2007] NSWCA 307.

Trimcoll Pty Ltd v the Deputy Commissioner of Taxation [2005] NSWSC 1324.

[2026] NSWSC 88.