Sutherland Shire Council v Perdikaris

The court orders and motion to enforce the orders are served

Mr and Mrs Perdikaris appeared in the proceedings brought by the Council to remedy the breach of the EPA Act. Mr Perdikaris appeared for himself and as agent for his wife at a hearing of the proceedings.
He attended by telephone on 16 October 2019 when the Court delivered judgment and made the order that he demolish the garage and the concrete slab.
The Council served a sealed copy of the Court orders made on 16 October 2019, endorsed with the penal notice under Uniform Civil Procedure Rules 2005 (UCPR) r 40.7, on Mr Perdikaris on 20 October 2019. Mr Veitch, a licensed process server, personally served Mr Perdikaris at his home with a letter from the Council's solicitor dated 17 October 2019 and a sealed copy of the Court's order made on 16 October 2019 (as stated in Mr Veitch's affidavit of service sworn 28 October 2019 and his further affidavit of service sworn 1 April 2020).
Mr Perdikaris acknowledged receiving the letter and the Court's orders.
Mr Perdikaris emailed the Council's solicitor on 23 October 2019 asking for an extension of time in which to comply with the Court's orders made on 16 October 2019. On 30 October 2019, the Council's solicitor wrote back to Mr Perdikaris not consenting to the requested extension of time for compliance with the Court's orders. Mr Perdikaris then instructed a solicitor, Mr Jordan. Mr Perdikaris handed Mr Jordan the Council's solicitor's letter of 17 October 2019 and the sealed Court orders. Mr Jordan wrote on 5 November 2019 to the Council's solicitor, again requesting on Mr Perdikaris' behalf, an extension of time in which to comply with the Court's order. The reason given for seeking the extension of time was that "it has been difficult for him to find workmen at short notice to carrying out the demolition and it seems that they are all busy in the lead up to Christmas".
This time, the Council agreed to allow Mr Perdikaris more time to comply with the Court's orders. The Council's solicitor advised that the Council considered that "demolishers could be engaged to demolish the unauthorised works prior to Christmas 2019." In these circumstances, the Council's solicitor advised that the Council "will forebear in taking enforcement action regarding Mr Perdikaris' failure to comply with the orders made by the Land and Environment Court on 16 October 2019 until 25 December 2019".
Christmas 2019 came and went, but Mr Perdikaris did not comply with the Court's order to demolish the garage and concrete slab.
On 7 January 2020, the Council's solicitor wrote to Mr Perdikaris saying that a recent inspection by the Council has indicated that the garage remains and the Court orders have not been complied with. The Council's solicitor advised that she was instructed "to commence contempt proceedings against you in the Land and Environment Court without further notice to you."
On 16 January 2020, the Council's consultant planner, Mr Arnold, inspected Mr and Mrs Perdikaris' house and observed that the garage remained in place.
On 6 February 2020, the Council filed the notice of motion seeking that Mr Perdikaris be punished for contempt and the order for substituted performance. The notice of motion was accompanied by a statement of charge that Mr Perdikaris had failed to comply with the Court order that he demolish the garage and concrete slab.
On 17 February 2020, Mr Veitch served Mr Perdikaris with a covering letter from the Council's solicitor dated 6 February 2020, the notice of motion filed on 6 February 2020, the statement of charge filed on 6 February 2020, an affidavit of Mr Arnold sworn on 31 January 2020, describing his observation that the garage remained in place, and an affidavit of service by Mr Veitch sworn 28 October 2019, concerning service of the original Court orders made on 16 October 2019. Mr Veitch personally served Mr Perdikaris at home with these documents (as stated in Mr Veitch's affidavit of service sworn on 17 February 2020).
On 6 March 2020, the notice of motion was listed for first directions before the Court. Mr and Mrs Perdikaris did not appear. Mr Perdikaris had sent an email to the Court saying that he was unwell. The notice of motion was adjourned to 20 March 2020 for directions.
On 20 March 2020, the directions hearing was held by telephone. The Council's solicitor and Mr Perdikaris attended by telephone. The notice of motion was adjourned until 17 April 2020 in order to permit service of the notice of motion and supporting documents on Mrs Perdikaris. Whilst the notice of motion seeks an order only that Mr Perdikaris be punished for contempt, the notice of motion also seeks an order for substituted performance, which would affect both Mr and Mrs Perdikaris, as they both own the land on which the garage and concrete slab are erected.
On 30 March 2020, the Council's solicitor wrote to Mr and Mrs Perdikaris by email confirming that the notice of motion had been adjourned for directions to 17 April 2020. Later that night Mr Perdikaris responded by email to the Council's solicitor, saying: "There will be no procedure on 17/04/2020 due to the Coronavirus you people got any brains people are dying all over the world you people should be ashamed of yourself this matter has been thrown out the door. Don't send me no more emails."
On 2 April 2020, Mr Veitch personally served Mrs Perdikaris at home with a covering letter of the Council's solicitor dated 10 March 2020, the notice of motion filed on 6 February 2020, the statement of charge filed on 6 February 2020, the affidavit of Mr Arnold sworn on 31 January 2020 and the affidavit of service of Mr Veitch sworn on 28 October 2019 (as stated in Mr Veitch's affidavit of service sworn 3 April 2010).
On 17 April 2020, the further directions hearing was held by telephone. Neither Mr Perdikaris nor Mrs Perdikaris appeared. The notice of motion was adjourned until 24 April 2020 to allow the Council to advise the Court of the suitability for the notice of motion to be heard by telephone or AVL, instead of in person in court, because of the Coronavirus pandemic.
On 20 April 2020, the Council's solicitor sent by email a letter to Mr and Mrs Perdikaris advising of the adjournment of the matter to 24 April 2020 for further directions and the direction that the Council advise the Court of the suitability for the matter to be heard by telephone or AVL. The Council's solicitor also advised Mr and Mrs Perdikaris that "28 July 2020 is currently reserved in the diary as potential hearing date."
On 24 April 2020, the Council appeared, but Mr and Mrs Perdikaris did not appear, at the directions hearing. The Court considered the Council's evidence as to the appropriateness of the hearing of the notice of motion being by telephone or AVL and ordered that the hearing be listed on 28 July 2020 by telephone. A pre-trial mention was listed for 7 July 2020.
On 27 May 2020, the matter was relisted before me for directions. The Council appeared, but Mr and Mrs Perdikaris did not appear. I varied the order made on 24 April 2020 to direct that the hearing on 28 July 2020 be in person in court instead of by telephone. The pre-trial directions hearing remained listed for 27 July 2020. I also suggested that the Council's solicitor write again to Mr and Mrs Perdikaris confirming the nature of the proceedings, the nature of the orders sought against Mr and Mrs Perdikaris, the case management directions that have been made so far, and the listing of the notice of motion for hearing in court on 28 July 2020.
On 4 June 2020, the Council's solicitor wrote to Mr and Mrs Perdikaris with the information I had suggested. The Council's letter of 4 June 2020 explained the nature of the proceedings brought by the Council and the orders sought in the notice of motion, including that Mr Perdikaris be punished for contempt, by fine, committal and/or sequestration of his property, and that the Council be permitted to demolish the garage and concrete slab and that Mr Perdikaris pay the Council's costs of doing so. The Council's letter summarised the procedural history, including the case management directions that had been made by the Court. The Council's letter confirmed that the proceedings have been fixed for hearing on 28 July 2020, with a pre-trial mention on 7 July 2020.
The letter of 4 June 2020 was personally served on Mrs Perdikaris by Mr Veitch on 5 June 2020 (as stated in Mr Veitch's affidavit of service sworn 5 June 2020).
On 7 July 2020, the pre-trial directions hearing was held. The Council appeared but Mr and Mrs Perdikaris did not appear. No further directions were made. I did suggest, however, that further efforts should be made to serve Mr Perdikaris with the documents that had been served on Mrs Perdikaris on 5 June 2020.
On 11 July 2020, Mr Veitch succeeded in personally serving on Mr Perdikaris the Council's solicitor's letter of 4 June 2020 and the orders of the Court made on 24 April 2020 listing the hearing of the notice of motion on 28 July 2020. Mr Veitch identified Mr Perdikaris, as he had served him on a previous occasion. Mr Veitch attempted to hand the documents to Mr Perdikaris. He did not take them. Mr Perdikaris said: "Give them back to the Council, I'm not taking them."
Mr Veitch then placed the documents at Mr Perdikaris' feet, saying: "This is the letter and orders in the matter of the Sutherland Shire Council v Perdikaris. I am serving them in your presence. You have been served."
Mrs Perdikaris picked up the documents. Mr Veitch also observed that she removed copies of the same documents which he had previously affixed to the front door.
On 26 July 2020, Mr Veitch personally served both Mr and Mrs Perdikaris at their home with a covering letter from the Council's solicitor dated 24 July 2020, the Council's written submissions to the Court on the notice of motion, and an affidavit of Mr Arnold sworn 24 July 2020, stating that Mr Arnold had observed on his inspection on 23 July 2020 that the garage remained in place.
This chronology establishes that Mr and Mrs Perdikaris have been personally served with the original judgment and orders made on 16 October 2019, the notice of motion, the statement of charge filed on 6 February 2019, the order listing the notice of motion for hearing on 28 July 2019, and the other affidavits and documents that I have earlier referred to. Mr and Mrs Perdikaris are aware that the Council will be moving in the Court on 28 July 2020 for orders that Mr Perdikaris be punished for contempt and for an order for substituted service that the Council demolish the garage and concrete slab instead of Mr Perdikaris doing so in accordance with the Court's orders.
Mr and Mrs Perdikaris have deliberately chosen to not attend the hearing of the notice of motion to contest the charge of contempt and the order for substituted performance. Any prejudice they might suffer by the hearing being conducted in their absence is self-inflicted.
In these circumstances, I consider that it is fair for the hearing of the motion to proceed today, notwithstanding that Mr and Mrs Perdikaris are not attending the hearing and contesting the notice of motion: see Ronowska v Kus (No 2) [2012] NSWSC 817 at [51]-[60].

Mr Perdikaris is in contempt

Mr Perdikaris has not complied with the Court's order made on 16 October 2019 that he demolish the garage and concrete slab. The Court's order required demolition within 28 days of the date of the Court order, which would have been by 13 November 2019. Mr Perdikaris did not demolish the garage and concrete slab by that date. He still has not done so. The garage and concrete slab remain standing today.
I find Mr Perdikaris in contempt by failing to comply with the Court's order (2) made on 16 October 2019.
The question that now arises is what punishment should be imposed for this contempt.
Part 55 of the Supreme Court Rules 1970 (SCR), dealing with contempt, applies to proceedings in Class 4 of the Court's jurisdiction: Land and Environment Court Rules 2007 (LECR) r 6.3. The orders made by the Court on 16 October 2019 were made in proceedings in Class 4 of the Court's jurisdiction.
There is a distinction between civil contempt and criminal contempt. A civil contempt involves disobedience of a court order or breach of an undertaking in civil proceedings. A criminal contempt involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525 at 530, 538. Failure to comply with the Court's order in these civil enforcement proceedings, that Mr Perdikaris demolish the garage and concrete slab, is a civil contempt.
There is also a distinction between a technical contempt and a wilful or contumacious contempt. The essential purpose of the distinction is to differentiate between conduct which, although constituting contempt, does not justify any punitive sanction, and conduct which does: Attorney-General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. In drawing this distinction, the intention of the person in committing the contempt is relevant (Bell v Stewart (1920) 28 CLR 419 at 429-432), although not necessarily determinative.
There is also a distinction between wilful and contumacious contempt, although the distinction cannot always be sharply drawn: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 501. Both wilful and contumacious contempt involve intentional non-compliance with a court's order. Contumacious contempt goes further than wilful contempt in that it also involves knowing defiance of the court's order and the authority of the court. Contumacious disobedience and defiance of a court's order renders criminal what would otherwise be civil contempt: Witham v Holloway at 538-539; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [130], [141], [2], [24]. For this reason, the purpose of punishment differs. In the case of merely wilful civil contempt, the purpose of punishment will be to ensure future compliance with the court's order. In the case of contumacious criminal contempt, as the person committing the contempt has evidenced their knowing defiance, the court will be concerned not only to ensure future compliance with the court's order, but also to sanction the past defiance: Ritchie's Uniform Civil Procedure NSW, [SCR Pt 55.13.2].
The Council, as the moving party seeking an order that Mr Perdikaris be punished for contempt, bears the onus of establishing the contempt charged beyond reasonable doubt, regardless of whether the contempt is civil or criminal: Witham v Holloway at 543, 545, 548. The Council bears the onus of proving that the contempt is wilful or contumacious rather than technical, and contumacious rather than wilful. The Council also bears the onus of proving other facts and circumstances that aggravate the seriousness of the contempt.
SCR Pt 55 r 13(1) provides that, where the person in contempt is an individual rather than a corporation, "the Court may punish contempt by committal to a correctional centre or fine or both." There is no maximum penalty specified in the SCR or LECR, or in the EPA Act under which the Court made the order with which Mr Perdikaris has not complied in contempt, either for a term of imprisonment or the amount of a fine. The Crimes (Sentencing Procedure) Act 1999 applies to a sentence for criminal contempt (Director-General Department of Fair Trading v Yang (2002) 132 A Crim R 438; [2002] NSWSC 754 at [13]) and by analogy to civil contempt (Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64 at [17]).
The Court's powers of punishment are not restricted to the alternatives of imprisonment or fine or both specified in SCR Pt 55 r 13(1). The Court retains the flexibility to impose a criminal sanction appropriate to the particular circumstances: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319, 320, 321. A contempt of court can be punished by any of a range of penalties that can be imposed for a crime pursuant to the Crimes (Sentencing Procedure) Act: Registrar of the Court of Appeal v Maniam (No 2) at 319; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [25].
In sentencing for contempt, the court will take into account the same principles as are applicable in sentencing for an ordinary criminal offence: NCR Australia Pty Ltd v Credit Connection Pty Ltd at [24].
In Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 4) [2013] NSWLEC 88, Biscoe J at [17] applied the ten factors relevant to sentencing for contempt identified by the Supreme Court in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185: "1. The seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; 10. denunciation of the contempt."
I will address such of these factors as are relevant to Mr Perdikaris' contempt.
The contempt is objectively serious. The contempt is wilful. Mr Perdikaris has known that he is obliged by the Court's order to demolish the garage and concrete slab since the order was made on 16 October 2019. Mr Perdikaris attended the delivery of the judgment by telephone. He heard the order being pronounced. He was later served with a sealed copy of the Court's order endorsed with a penal notice. He sought the Council's agreement to an extension of time to comply with the Court's order, both on his own initiative and through his solicitor. He was advised that the Council would not take action to enforce the order before 25 December 2019. But he did not comply with the order within that extended period of time.
Mr Perdikaris has been served with a notice of motion and the statement of charge seeking an order that he be punished for contempt for failing to comply with the Court's order that he demolish the garage and concrete slab and an order for substituted performance that the Council demolish the garage and concrete slab if Mr Perdikaris does not do so. He has been served with many other documents, including the Council's evidence and submissions in the proceedings. He attended some directions hearings in the proceedings. Yet, he continues not to comply with the Court's order that he demolish the garage and the concrete slab. This intentional conduct to not comply with the Court's order is wilful contempt.
The evidence is insufficient, however, to prove beyond reasonable doubt that Mr Perdikaris is knowingly defying the Court's order and the authority of the Court, and hence that the contempt is contumacious.
The objective seriousness of the contempt is raised by the ongoing harm caused by the garage and concrete slab remaining in place. The Court, in concluding that the garage and concrete slab should be demolished, found that the garage is a highly visible structure, a dominant element in the streetscape that adversely impacts the amenity of the area. It had been subject to a number of complaints from neighbours. The size, scale and location of the garage on the land breached numerous planning controls, so that it would be unlikely to ever obtain development consent (see at paras [43], [45] and [46] of the judgment). The failure to comply with the Court's order for demolition of the garage and concrete slab continues this harm.
Mr Perdikaris was made aware of the consequences of his original action in constructing the garage and concrete slab in breach of the EPA Act, by the Court's judgment and orders declaring a breach of the EPA Act and ordering Mr Perdikaris to demolish the garage and concrete slab. The Court's orders sought to remedy and restrain Mr Perdikaris' breach of the law.
Mr Perdikaris has been made aware of the consequences of his ongoing failure to comply with the Court's order to demolish the garage and concrete slab by the penal notice endorsed on the sealed court orders, the notice of motion and statement of charge seeking that he be punished for contempt, and the various letters and advice he has received concerning the consequences of failing to comply with the Court's orders.
The actual consequence of the contempt is that Mr Perdikaris' breach of the EPA Act continues and the large and highly visible garage continues to adversely impact the amenity of the area.
Mr Perdikaris' reasons for committing the contempt are not clear. The Court found that the reason for Mr Perdikaris erecting a garage of the size and scale that he did was "to store his race cars in the garage (he is a car enthusiast and a professional drag racer)" and to accommodate the height of the hoist in the garage (at para [44(b) and (c)] of the judgement). Mr Perdikaris' reason for not wishing to demolish the garage may be the same; he wishes to continue having the benefit of a garage of a size and scale to store his race cars and hoist.
Mr Perdikaris did offer a reason for not complying with the Court's order initially. In his solicitor's letter of 5 November 2019, it was said that "it has been difficult for him to find workmen at short notice to carry out the demolition and it seems that they are all busy in the lead-up to Christmas." This reason, however, was no longer applicable after Christmas. Mr Perdikaris has not offered a reason why he has not been able to comply with the Court's order to demolish the garage and concrete slab in the seven months since Christmas.
Mr Perdikaris did email the Council's solicitor on 30 March 2020, saying that the contempt proceedings against him would not proceed in Court - "this matter has been thrown out the door" - due to Coronavirus pandemic. But this was not a statement that Mr Perdikaris could not comply with the Court's order that he demolish the garage and concrete slab because of the Coronavirus pandemic.
Mr Perdikaris has not offered an apology for not complying with the Court's order or publicly expressed any contrition or remorse.
Mr Perdikaris does have a criminal record. The Council tendered "The New South Wales Police Force criminal history - bail report" for Mr Perdikaris. This revealed that Mr Perdikaris has a criminal record for a variety of different offences, including traffic offences, although none for offences against the EPA Act or other planning or environmental laws.
There is a need for both personal and general deterrence. As has often been said when sentencing for offences against the EPA Act, there is a need for general deterrence to uphold the integrity of the planning system. So too, there is a need to deter others who might be tempted to fail to comply with court orders remedying breaches of the EPA Act. Most importantly, however, is the need to deter Mr Perdikaris from continuing to fail to comply with the Court's order that he demolish the garage and concrete slab. The punishment imposed on Mr Perdikaris for the contempt must be sufficient to ensure his future compliance with the Court's order.
The punishment imposed must also be a denunciation of the contempt.
Taking these factors into consideration, as well as the overlapping factors in the Crimes (Sentencing Procedure) Act, I consider that the appropriate form of punishment is a fine and that the appropriate amount of the fine is $10,000. The amount of the fine must be proportionate to the objective seriousness of the contempt and serve the purposes of sentencing, including personal deterrence. The fine must be of a sufficient amount to induce Mr Perdikaris to comply with the Court's orders.
In fixing the amount of the fine, I am required to consider such information regarding the means of Mr Perdikaris as is reasonably and practicably available to the Court for consideration: see s 4 (1)(a1) and s 6 of the Fines Act 1996. Mr Perdikaris has not, of course, provided any information to the Court about his means. I note that the Court, when determining to order Mr Perdikaris to demolish the garage and concrete slab, recorded that "Mr Perdikaris submitted that by reason of his ongoing financial difficulties, no such order should be made" (at [52]). The Court rejected that submission, one reason being that "no evidence was proffered to the Court to support Mr Perdikaris' assertion of impecuniosity" (at [53]). I am in no better position today. I have no evidence that Mr Perdikaris would be unable to pay a fine fixed in the amount of $10,000.
The imposition of a fine in the amount of $10,000 is appropriate to punish Mr Perdikaris for his contempt in not complying with the Court's order to demolish the garage and concrete slab, but it is also intended to induce Mr Perdikaris to comply with the order in the near future. To better achieve this purpose of inducing compliance with the Court's order, I consider it would be appropriate to suspend the order for punishment by way of fine for a time period in order to allow Mr Perdikaris to comply with the Court's order to demolish the garage and concrete slab.
SCR Pt 55 r 13(3) allows the court to make an order for punishment on terms, including a suspension of punishment. I consider it would be appropriate to suspend the punishment of the fine upon the condition that Mr Perdikaris demolish the garage and concrete slab, as ordered by the Court, within three months of today.
The period of three months is longer than the 28 days originally required by the Court's order of 16 October 2019. Mr Perdikaris has also, of course, had nine months since the Court made this order requiring demolition of the garage and concrete slab. But Mr Perdikaris has not availed himself of this extra time since the order was made. Time to demolish the garage and concrete slab needs to start again from the date of my order. I have allowed a longer period of three months, rather than only one month, to ensure that Mr Perdikaris can secure the services of workmen to carry out the demolition.
The effect of the suspension of the punishment is that, if Mr Perdikaris does comply with this condition and demolish the garage and concrete slab within three months, he will not have to pay the fine. However, if he does not comply with the condition and demolish the garage and concrete slab within three months, he will have to pay the fine.
The order I propose is: 1. Mr Perdikaris is fined the sum of $10,000 2. The punishment in order (a) is suspended upon the condition that Mr Perdikaris demolish the free-standing garage and concrete slab upon which it stands at 1 Penmon Close, Menai by 27 October 2020.

At a glance

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Judgment (9 paragraphs)

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Cases Cited (14)

Cited By (14)