Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
[2015] HCA 46
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on an Case) (2018) 265 FCR 208
[2018] FCAFC 126
Beckwith v The Queen [1976] (1976) 135 CLR 569
HCA 55
Director of Public Prosecutions v Priestley [2013] NSWSC 407
Environment Protection Authority v Waight 125 LGERA 399
Source
Original judgment source is linked above.
Catchwords
Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482[2015] HCA 46
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on an Case) (2018) 265 FCR 208[2018] FCAFC 126
Beckwith v The Queen [1976] (1976) 135 CLR 569HCA 55
Director of Public Prosecutions v Priestley [2013] NSWSC 407
Environment Protection Authority v Waight 125 LGERA 399[2003] NSWLEC 93
He Kaw Teh v R (1985) 157 CLR 523[1985] HCA 43
Holloway v McFeeters (1956) 94 CLR 470[1956] HCA 25
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11243 CLR 361
LMI v Baulderstone 53 NSWLR 31[2001] NSWSC 688
Marshall v Watson (1972) 124 CLR 640[1972] HCA 27
Murphy v Farmer (1988)165 CLR 19[1988] HCA 31
Project Blue Sky v Australian Broadcasting Authority 194 CLR 355[1998] HCA 28
Seltsam Pty Limited v McGuinessJames Hardie & Coy Pty Limited v McGuiness 49 NSWLR 262
NSWLEC 252
The King v Adams (1935] 53 CLR 563
Judgment (21 paragraphs)
[1]
Introduction
The present proceedings concern an application under s 247A of the Strata Schemes Management Act 2015 (NSW) (SSMA) by the owners corporation for the imposition of a civil penalty upon the respondent, Ms Roberts (penalty application). The penalty application was lodged on 16 June 2022.
The owners corporation claims Ms Roberts breached orders of the Tribunal made 25 February 2022, 4 March 2022 and 7 June 2022 in various applications being applications SC 22/08447, SC 22/08452 and SC 22/24178 (collectively "the original proceedings"). In each of the original proceedings, the owners corporation was the applicant and Ms Roberts was the respondent. Penalties are sought for what are said to be multiple contraventions of these orders.
In the original proceedings the owners corporation claimed Ms Roberts was carrying out work to common property without the necessary permissions and this work caused damage to the common property. The dispute centred around renovation work which Ms Roberts said the owners corporation had failed to approve to permit her to renovate her lot, Lot 12 in the strata scheme. This work, the owners corporation said, included plumbing work, jack hammering and drilling and removal of a kitchen wall.
The owners corporation sought orders including under ss 132(1) (Rectification where work done by lot owner causing damage to common property), 231(1) and 241 (to prevent on an interim basis the carrying out of unauthorised work) and s 124 (Orders by Tribunal relating to entry to carry out work or inspections).
Application SC 22/08447 (first interim application) was an application for interim orders to requiring Ms Roberts "to immediately cease any further renovation works in or around Lot 12 in Strata Plan No. 4393" and to allow members of the owners corporation's strata committee and their advisors access "to inspect the unauthorised works carried out by [Ms Roberts]".
Application SC 22/08452 (substantive application) was an application for final relief being orders to carry out repairs. In this regard the Tribunal requires a separate application to be filed when a party seeks interim orders in strata proceedings. Both the first interim application and the substantive applications were lodged on 25 February 2022.
Application SC 22/24178 (second interim application) was a second application for interim relief. It was lodged on 31 May 2022. It sought expedition of the hearing of the substantive application, an extension of orders made in the first interim application on 4 March 2023 (which orders are set out below) and further access orders.
These reasons deal with two issues:
1. Whether there have been multiple contraventions of orders of the Tribunal (Contravention Issue); and
2. Whether the Tribunal can impose multiple penalties if an order is successively contravened and, if so, in what circumstances (Statutory Construction Issue).
In relation to the second issue the second respondent, the Commissioner of Fair Trading (Commissioner), intervened and was joined as a party. The Commissioner made submissions concerning the proper construction of s 247A of the SSMA and the orders which the Tribunal could make under that section.
[2]
Orders made by the Tribunal in the original proceedings
On 25 February 2022 the Tribunal made the following orders in chambers in the first interim application and the substantive application (25 February order):
1. Having considered the material provided in the application, the Tribunal is satisfied that urgent considerations justify the making of the following order on an interim basis without hearing from the respondent:
The Respondent, and each of her servants, agents and contractors, is to immediately cease any further renovation works in or around Lot 12 in Strata Plan No. 4393.
2. The above order will remain in force until 5.00 pm on 4 March 2022, being the date on which the application for interim orders will be listed for hearing and the application for substantive orders will be listed for directions.
3. Any application to continue or revoke the above order will be considered at the hearing on 4 March 2022.
4. The application for interim order 2 is to be listed for hearing and the application for substantive orders is to be listed for directions on 4 March 2022.
5. By 28 February 2022 the applicant is to provide to the respondent and the Tribunal evidence and submissions in support of the application for interim orders. The applicant is also to provide to the respondent a copy of all documents attached to the application and the bundle of documents filed on 25 February 2022.
6. By 3 March 2022 the respondent is to provide to the applicant and the Tribunal any evidence and submissions in response to the application for interim orders.
7. Evidence and submissions must specifically address:
a) whether urgent considerations warrant the making of orders on an interim basis; and,
b) if so, the nature of the urgent considerations.
8. All documents are to be provided in hard copy (not by email) in an indexed, tabbed and paginated bundle contained in a ring binder or other such device.
9. THE EVIDENCE OF ANY PARTY OR WITNESS IS TO BY SIGNED WITNESS STATEMENT, STATUTORY DECLARATION, AFFIDAVIT OR EXPERT REPORT.
On 4 March 2022, after a hearing of the application, a further interim order was made in the first interim application (4 March order) as follows:
1. For reasons given orally, the Tribunal orders that, until further order or the expiry of three months, the respondent is restrained from carrying out any renovation works in or around lot 12 in Strata Plan No 4393 without the written consent of the applicant owners corporation.
[3]
Allegations of contravention
The Tribunal made directions for the filing and service of a document in the nature of a Scott Schedule setting out the particulars of the alleged contraventions of the Tribunal's orders and for the filing and service of evidence.
For the purpose of the hearing, the parties provided a joint hearing bundle (JB) which contained documents and the written evidence relied upon by the parties.
In the bundle, at JB 9-12, is a document entitled "Schedule of Contraventions". There were eleven items identified as contraventions. These items did not identify the order or orders said to have been contravened. However this information, which is set out below, was provided to us at the hearing. Items 1, 2, 6, 8, 10 and 11 were not pressed as allegations of contravention. Items 3, 4, 5, 7 (deleting the reference to events of 5 June 2022) and 9 were pursued. Schedule A to our reasons sets out the particulars contained in the Schedule of Contraventions, to which we have added details of the date of the order said to have been contravened in respect of each item.
It should be noted that the 25 February order is no longer the subject of an allegation of contravention, item 1 of the Schedule of Contraventions not being pursued.
[4]
Hearing of the application
The penalty application was heard on 29 March 2023 and 4 April 2023.
The hearing on 29 March was conducted in two parts. The first part dealt with the Statutory Construction Issue, the only issue about which the Commissioner wished to be heard. In this regard the parties agreed that it was convenient to deal with this matter first, so as to avoid the need for the Commissioner's representative, Ms Morgan, to remain in attendance during the course of the parties giving evidence and making submissions concerning the Contravention Issue.
After hearing submissions on the Statutory Construction Issue, the Commissioner was excused from further attendance. However, as noted below, the Commissioner subsequently filed submissions on a further issue, namely whether mens rea forms part of the requirements for proving contravention.
The hearing on the Contravention Issue did not conclude on 29 March 2023. The proceedings were adjourned part heard to 4 April 2023.
At the conclusion of the hearing on 4 April 2023 we adjourned to determine the Contravention Issue and the Statutory Construction issue. We made directions to permit short written submissions as follows:
2. Leave is given to the parties to file an exchange short submissions (not more than three pages):
a) on the issue of whether mens rea is a necessary component to establish a contravention for the purpose of section 247A of the Strata Schemes Management Act 2015 (NSW); and
b) on the issue of when inferences can be drawn,
such submissions to be filed and served by 12 April 2023.
Despite the manner in which the hearing proceeded, we will deal with the Statutory Construction Issue after we deal with the Contravention Issue.
As to the Contravention Issue, the hearing of this part of the application proceeded over 29 March and 4 April 2023.
The parties relied on various affidavit evidence. In the case of the applicant, this evidence included affidavits of Ms Han affirmed 24 February and 28 February 2022 and the affidavits of Mr Weihen affirmed 31 May and 15 June 2022.
The respondent objected to some of the paragraphs in the above affidavits, details of which are recorded in MFI 1. The outcomes of those objections are also recorded in MFI 1, oral reasons being given for the rulings as required.
[5]
Contravention Issue
We will deal with the contraventions by reference to each item in Schedule A. The applicant must prove each contravention on the balance of probabilities.
Before doing so we will deal with the issue of when inferences can be drawing in penalty proceedings.
[6]
When can inferences be drawn?
The parties agree inferences can be drawn from evidence to establish a contravention.
In supplementary submissions dated 12 April 2023, the respondent said that "inferences can be used in proof of contravention". However, the respondent continued:
Inferences are a form of evidence, but they cannot be liberally drawn just because it is convenient to do so. Circumstances must "give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture".
Reference was made to Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 per Williams, Webb and Taylor JJ at 480.
To similar effect are the submissions of the owners corporation, referring to the Court of Appeal decision in Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness 49 NSWLR 262; [2000] NSWCA 29. There, Spigelman CJ said at [84] and following:
84 It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.
85 Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 45):
"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference."
86 After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR(NSW) 301 said (at 306):
"The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible."
87 As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:
"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
88 The test is whether, on the basis of the primary facts, it is reasonable to draw the inference. (See eg Layton v Vines (1952) 85 CLR 352 at 358).
[7]
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party...
42. The drawing of Jones v Dunkel inferences, if appropriate, in civil penalty proceedings where there is an available claim for penalty privilege has been confirmed by the Full Court: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [74] to [76]; Adams v Director of Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 at [147].
To this should be added the reminder of the obligation on an applicant to prove their case. After setting out the above passage from Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 and dealing with the question of whether Jones v Dunkel can apply where civil penalty privilege is claimed, the Full Court in Adams v Director of Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 the Full Court said at [147]:
… We have previously referred to the care which must be taken in applying the decision to a regulator which is still obliged to prove its case on the balance of probabilities in accordance with s 140 of the Evidence Act: Australian Securities and Investments Commission v Rich [2004] HCA 42; (2004) 220 CLR 129 at [24] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
[8]
Item 3 - Contraventions on 4 and 5 May
This contravention was said to arise from observations of Mr Weihen who saw a plumber attending Ms Robert's lot to carry out plumbing work. The particulars include a discussion which Mr Weihen had with the plumber who said "I was told to ignore you". The owners corporation also relied on photographs taken by Mr Weihen.
The evidence relied on was contained in Mr Weihan's affidavit affirmed 31 May 2022, being paragraphs [39], [41], [47] and [53]. The owners corporation also relied on exhibits to that affidavit found at pages 62 - 66 and 68 - 69.
In these paragraphs, Mr Weihen gave evidence of attending Ms Robert's premises on 4 May 2022 and 5 May 2022. This evidence included observations on 4 May 2022 of power tools scattered around the premises and a statement by a man who said:
I am a plumber. I am here to carry out plumbing work. I don't know about any order.
Mr Weihen also gave evidence that he observed the plumber make a phone call after which the plumber said "I was told to ignore you".
Mr Weihen then says that on 5 May 2022, following a call from a Ms Galloway (a lot owner in the strata scheme), he telephoned the plumber to whom he had spoken the day before (having been given that person's business card) who said he was currently in Ms Robert's lot. During that conversation the plumber said:
I am here to collect my tools. How can the stop work order be lifted? Can I have a copy of it?
There was also a further conversation where the plumber said he had been told by Ms Roberts that she would pay any fines if the plumber received them. The plumber also said he was asked by Ms Roberts if he knew an electrician because Ms Roberts had said to the plumber she would pay the fines for an electrician as well.
Annexure M to Mr Weihen's statement (JB 337) is a file note of the events of 4 May 2022. Mr Weihen was cross-examined about this file note and conceded certain matters recorded in the file note being the statement "she's mad" are not set out in the affidavit. The documents at pages 62-66 of Mr Weihen's affidavit (JB 332-336) are photographs of building work and the inside of Ms Robert's lot. The documents at pages 68 and 69 of Mr Weihen's affidavit, annexure N (JB 338-9) are screenshots of text messages with the plumber on 6 May 2022.
[9]
Items 4 - Contravention on 9 May 2022
This alleged contravention concerns Mr Weihen observing tradesmen carrying plasterboard into the respondent's Lot.
There is no dispute that on 9 May 2022 plasterboard was unloaded and moved to Ms Roberts' lot. The issue is whether this contravened the 4 March order.
The owners corporation submits that this was work within the description of prohibited work and that an inference can be drawn from the fact of carrying plasterboard to Ms Roberts' lot that work was being done in contravention of the order. Reliance was placed on the evidence of Mr Weihen at para 64(a) of his affidavit affirmed 31 May 2022. There Mr Weihen says:
I observed 2 men dressed in tradesmen attire that were unloading sheets of plasterboard from a trap and transporting the materials from the strata scheme's driveway up to Lot 12.
It seems to us that tradesmen carrying plasterboard to her premises does not constitute "carrying out any renovation works in or around Lot 12". There is no evidence that work was done on lot 12 to install plasterboard or undertake any works preparatory to its installation on the day in question. Rather, the conduct observed was the delivery of plasterboard to Lot 12.
The orders made by the Tribunal did not prevent Ms Roberts storing goods on her premises, including any goods that might be used to renovate her premises if and when she was permitted to do so.
It follows a contravention of this item is not established.
[10]
Item 5 - Contravention on 20 May 22
This contravention involves the claim there was electric jackhammering or drilling being conducted on the premises on 20 May 2022.
The evidence to support this claim is at [74] of Mr Weihen's affidavit affirmed 31 May 2022. Mr Weihan says he heard noises "consistent with an electric jackhammer or drilling" and observed tradesmen exiting Ms Roberts' lot. He also gives evidence of a conversation he had with Ms Roberts at the time of his observations of her lot in the following terms:
Mr Weihen: Is that noise work is taking down the kitchen wall?
Ms Roberts: No. They are doing work to the floor.
Ms Roberts does not respond to this evidence in her affidavit in reply. In cross examination, Ms Roberts gave evidence that workers had come to the premises to do work but she could not remember the time. She also said she could not remember a conversation with Mr Weihen.
In the course of this evidence, Ms Roberts was asked about taking down the wall of the kitchen, in response to which she said that the wall was taken down after June.
From this evidence we are satisfied a contravention of the 4 March order occurred on 20 May 2022, consisting of carrying out jackhammering, drilling or other work to the floor of Ms Roberts' lot.
[11]
Item 7 - Contraventions on 9 and 10 June 2022
These contraventions concern noises emanating from Ms Roberts lot, removal of a kitchen wall and observations concerning removal of building debris on 9 and 10 June 2022. The 7 June order is the order said to have been contravened.
The evidence relied upon by the applicant in establishing this contravention is the evidence of Ms Aleixo in her affidavits affirmed 15 June 2022 and 7 September 2022. These affidavits are essentially the same. Paragraph 4, which concern the events on 5 June 2022, was not read.
Ms Aleixo gives the following evidence:
6. On or about Thursday, 9 June 2022, at or around 5:20 7 pm, I observed a tradesperson's vehicle and a skip bin containing, what I verily believe to be, the remnants of Lot 12's deconstructed wall on the common property.
7. Part of the strata scheme's shared driveway was obstructed due to the location of the skip bin.
8. Annexed to my affidavit and marked "B" at pages 5-6 are photographs taken by me on 9 June 2022 of the skip bin and people.
9. On or about Friday, 10 June 2022, I observed tradespeople attending the site and carrying building materials into Lot 12. I also heard loud noises that sounded like construction work, including jackhammering and soaring, emanating from Lot 12, throughout the day.
The applicant also relies upon the transcript of the hearing before the Tribunal on 7 June 2022 at which the order was made, including evidence given by Ms Roberts through an interpreter at JB 986.
Ms Roberts accepted in cross examination that works to remove the kitchen wall occurred on 9 June 2022, with the work continuing on 10 June 2022 when the workers came to clean up rubbish.
In submissions, Counsel for Ms Roberts said the evidence only identified 9 June as the date any works were carried out. Reference was made to the affidavit of Mr Weihen at JB 486. Paragraphs 11 and 12 relate to the events of 9 and 10 June 2022.
Counsel for Ms Roberts also submitted that notice of the 7 June order was not received until 14 June 2022, when Ms Roberts received an email. Reference was made to [87] and [88] of Ms Roberts' affidavit affirmed 29 June 2022. Counsel submitted that an unintentional breach was not a contravention of an order and that knowledge of the order was required. Reference was made in the course of submissions to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
[12]
Item 9 - Contravention on 4 July 2022
This claim relates to Mr Weihen's observations concerning work being carried out on Lot 12 on 4 July 2022. Reliance is placed on Mr Weihen's affidavit affirmed 8 September 22, particularly at [15]-[17] and page 12.
This evidence was to the effect that, upon attending the premises, Mr Weihen observed a man dressed in tradesman work gear and saw inside the apartment was covered with drop sheets and paint buckets. Page 12 of the affidavit consists of photographs of a van parked on common property.
In response to the claim of contravention on 4 July 2023, the respondent submitted that "mens rea" must be proven.
Ms Roberts gave evidence in chief that she was in England on 4 July 2022. She also gave evidence that a friend of hers, Ms Lui, told her the painter did some cleaning work on that day and left.
In written submissions dated 12 April 2023, Counsel for Ms Roberts says that she "overlooked telling her Sydney agent - her friend, Ms Liu - about the stop work order renewed on 1 July 2022". Here, the respondent says she fell asleep after the hearing on 1 July 2022 (which concluded at about 4am England time) and "overlooked contacting Ms Liu until the following Monday" which was 4 July 2022.
Ms Roberts submits that she has not "contravened the provision because she did not intend to do so". In this regard Counsel submits Ms Roberts was not cross-examined about "her sleep and her inadvertence, up to and including 4 July 2022".
Both the applicant and, as noted above, the Commissioner made submissions on the topic.
The respondent says that s 247A is "quasi-penal in character". At [11] of her written submissions date 12 April 2023 the respondent says:
It would therefore be "surprising if not unlikely for the Parliament to have intended to deter a person who never intended to commit a contravention. Parliament is not to be assumed to enact absolute liability provisions, sotto voce, to make guilty those who do not have a guilty mind. And if the mischief behind the insertion of s 247A was to broaden the class of applicants who can enforce a Tribunal orders (sic), the mischief is not addressed by removing from the provision any element of intent."
Reference is made to two decisions of the High Court.
The first is He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43 (He Kaw Teh) where Brennan J (as he then was) said at 565-7. The second is Murphy v Farmer (1988); 165 CLR 19; [1988] HCA 31 and the reasons of the majority (Deane, Dawson and Gordon JJ) at 28-29.
[13]
Statutory Construction Issue
This issue concerns whether the Tribunal can impose multiple penalties if an order is successively contravened and, if so, in what circumstance.
[14]
Commissioner's submissions
The Commissioner provided comprehensive submissions about the possible construction of section 247A, which can be summarised as follows:
1. Regard needs to be had to the ordinary and grammatical meaning of words in the provision. Ordinarily, the legal meaning will correspond with the natural and grammatical meaning of words in a provision unless the context requires that the words of a legislative provision are to be construed in a way that does not correspond with the literal and grammatical meaning: Project Blue Sky v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28.
2. The task of construction should start with a consideration of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (Alcan) at [47]. In this case the text is silent on the question of whether multiple penalties may be imposed for multiple acts or omissions or repeated or continuing conduct that constitutes a contravention of a single order of the Tribunal.
3. Three matters are put forward for consideration in relation to the text of s 247A:
1. First is the meaning of "contravention of an order".
That expression does not use the words "contravention, or contraventions, of an order". Nor is the expression "a contravention" or "the contravention" used, reference being made to other sections of the SSMA is such as s 26, 106(5) and 248. Rather, "contravention per se is subject to the maximum penalty rather than individual acts or events of contravention".
As to the words "an order", it may be significant as to the words of any order made. Depending on its terms, an order may require multiple things to be done. Alternatively there may be multiple orders requiring individual things to be done.
In the present case, the Commissioner notes the owners corporation has characterised the interim orders as "stop work" orders, the original 25 February order said to be subsequently extended. The Commissioner says that under section 202 of the Strata Schemes Management Act 1996 (NSW) (repealed) (1996 Management Act), this earlier Act also permitting the imposition of penalty, the Tribunal has treated a restraining order as a single order, even where it requires multiple things to be done. Reference was made to various decisions of the Tribunal including Anderson and the discussion at [86] and The Owners - Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48 at [78] and Taylor No 2.
1. Section 247A(3) provides a party should not be punished twice if the act or omission constitutes a contravention for the purpose of that section and for the purpose of the civil penalty provisions or contempt provisions in the NCAT Act.
However, the Commissioner submits preventing "the double jeopardy risk", as this subsection does, "does not provide strong textual guidance in either direction on the question at issue".
1. The third consideration is "legislative silence".
Here, the Commissioner says the question arises as to whether repeated acts or omissions contrary to an order are to be characterised and penalised as (or analogously to) a continuing offence.
Reference was first made to the common law position that an offence is "committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences": Sloggett v Adams (1953) 70 WN 206 at 208.
The Commissioner then submits that whether a statute provides a continuing offence "will turn on the wording of the legislation but it must be clear that a fresh obligation is being imposed on a person with each day that goes by or on which non-compliance occurs the conduct to constitute a continuing offence": DC Pearce, Statutory Interpretation in Australia (2019, 9th edition, Lexis-Nexis Butterworths) at [9.34]. Where the statute does not express that it is a continuing offence, the "greater likelihood is that there will be a continuing obligation to comply with a requirement in the legislation but that the obligation will not be renewed each day as fresh conduct": Pearce at [9.34]
Having referred to other legislation where express provision is made, the Commissioner notes the only continuing offence provision of this type is found in s 207 of the SSMA. This section provides for a penalty in the following terms
Maximum penalty - 10,000 penalty units and, in the case of a continuing offence, a further 200 penalty units for each day the offence continues.
In this regard s 250A provides:
250A Continuing offences
(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time) -
(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and
(b) is guilty of a continuing offence for each day the contravention continues.
(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.
(3) This section does not apply to the extent that a requirement of a notice is revoked.
1. On the issue of context and whether multiple penalties may be imposed for ongoing contraventions of a single order, reliance is placed on the following matters:
1. Section 147 of the SSMA expressly provides that a second penalty may be imposed for a second breach of the same by-law in the circumstances provided in subs 147(2)-(3). No such express provision is found in s 247A.
2. Section 250A of the SSMA provides for continuing offences. Critically, the Commissioner submits, s 250A(2) provides that the section does not apply to an offence unless the relevant provision of the SSMA provides for a penalty for a continuing offence. Guidance from this provision may be unhelpful as it does not relate to civil penalties.
1. As to legislative history, reference is made to the second reading speech on the introduction of the Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020 (NSW) (the Bill) in the Legislative Council on 25 August 2020 where the Hon Ben Franklin said the Bill "also addresses a difficulty facing lot owners and owners corporations in enforcing an order of the Tribunal where breaches continue to occur [and provides] a 'double jeopardy' protection".
2. As to the purpose of s 247A, the Commissioner referred to the primary purpose of civil penalties being protective and to provide deterrence. On the one hand, the Commissioner noted that the purpose may not be promoted if only a single penalty could be imposed where there are repeated and ongoing breaches. The second reading speech supports this issue was contemplated by the Legislature and was being addressed upon introduction of s 247A.
On the other hand, empowering the Tribunal to impose successive penalties will have a significant financial impact upon a contravener resulting in punishment, an outcome contrary to the purpose of a civil penalty.
1. As to presumptions of statutory construction, the Commissioner submitted:
1. What are referred to as the conduct principle and the totality principle are not rules of construction but "principles or tools to assist the court in arriving at an appropriate penalty", reference being made to the decision of the Full Court of the Federal Court of Australia in Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 (Yazaki) at [226].
2. Where there is genuine ambiguity, a penal provision should be construed strictly in favour of the defendant, although this presumption is now considered one of last resort: Beckwith v The Queen [1976] (1976) 135 CLR 569; HCA 55 at 576, Alcan at [41].
The fact of a penal provision remained part of the context in which s 247A was enacted.
[15]
Applicant's submissions
The position of the owners corporation was that "the Tribunal is not limited to imposing a total maximum penalty of 50 penalty units for an unlimited number of contraventions of one particular Tribunal order".
In written submissions, six matters were put to support this position:
1. The use of the singular "contravention" rather than "contraventions" in s 247A indicated that the Legislature intended the maximum penalty applies to "a contravention of an order" reference was made to the 2nd reading speech and the explanatory note to the Amendment Bill which is the expression "a".
2. Section 247A imposes two limitations on the power of the Tribunal to impose a civil penalty, neither of which applies in this case. "If Parliament had intended to further limit the Tribunal's power to impose a civil penalty of 50 penalty units, regardless of how many times a respondent breached the order, then it would have included such a limitation in s 247A(3) or elsewhere in the section".
The Commissioner's submission concerning double jeopardy does not deal with this submission, namely that s 247A(3) is the only limitation which the Legislature saw fit to include.
As to the Commissioner's reference to the second reading speech, the owners corporation submits that the extract was truncated, the full extract making clear that the introduction of the section was to address the anomaly of proceedings for contraventions other than of by-laws requiring the authority of the Attorney General.
1. An interpretation permitting multiple penalties would not lead to the penalty amount being excessive. Reference was made to the totality principle and the decision of Anderson at [86].
2. It was open to the owners corporation to commence 11 separate proceedings, one for each of 11 alleged contraventions. If it had done so and obtained separate orders then a penalty could be imposed for a breach of each of those orders.
3. The construction of the owners corporation is purposive of the approach to the section. Deterrence will not be achieved if only one penalty can be imposed where there are continuing breaches. Rather, it will permit at minimal cost repeated violations of Tribunal orders, a matter which diminishes the deterrence effect in respect of subsequent violations.
Consequently, such an interpretation is inconsistent with the purpose of s 247A.
In reference to Taylor No 2, this case does not support the proposition that only one penalty could be imposed. The owners corporation says that the order in that case was to carry out work by a certain date, rather than prohibited the carrying out of works. As such, in the absence of a section such as 250A of the SSMA (which relates to continuing offences for which a penalty can be imposed on each day the contravening conduct occurs) it is unclear whether the failure to perform work by a particular date gives rise to a continuing contravention for which multiple penalties can be imposed.
In any event, the order being considered in Taylor No 2 was different to that presently under consideration.
1. While each statute must be interpreted for itself, analogies can only be taken so far. Referring to Anderson at [77], the owners corporation says that regard can be had to the manner in which other legislation, such as the Fair Work Act 2009 (Cth), has been interpreted.
Here, the owners corporation noted the Federal Circuit Court had imposed multiple penalties concerning a CFMEU official attending a building site: Australian Building and Construction Commissioner v Hanna [2017] FCCA 1257 at [16]-[25], a decision upheld by the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on an Case) (2018) 265 FCR 208; [2018] FCAFC 126.
[16]
Ms Roberts' submissions
Ms Roberts commenced her written submissions by saying that the definitive article "a" was not used in s 247A(1) whereas it was used in s 247A(3).
Ms Roberts also said that the power to impose a "pecuniary penalty", being the language used in s 247A, would not automatically to be understood as a "civil penalty provision" despite the heading of the section. Rather, it is a pecuniary penalty akin to a fine.
Having so described the provision, and having referred to the decisions of the High Court in Pattinson and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 and to the role of deterrence, the submission continued at [10]-[11]:
10. It is difficult, artificial even, to construe s 247A to allow the Tribunal to find a person for each historical moment of breach. That would not serve the deterrence function, which is future-facing.
11. This approach is supported by what the High Court has said elsewhere about construing statues. The Commissioner says that in construing ambiguous penal provision is, they should be resolved in favour of a defendant, though only as a last resort in the process of statutory construction (pars 66 to 69). That is true, the Commissioner does not closely consider the 1st resort in construing quasi-criminal provisions.
Reference was made to the decisions of:
1. The King v Adams (1935] 53 CLR 563; [1935] HCA 62 (Adams), per Rich, Dixon, Evatt and McTiernan JJ at 567-8, who said that when the language of the legislation creating an offence is "vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provision and subject matter of the legislation, then it should not be construed as extending any penal category"; and
2. Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27 (Marshall) per Stephen J at 649 who said that even where the legislature would have done well to include certain powers, it is not a "judicial function to fill gaps disclosed in legislation".
Ms Roberts submitted that implying the word "a" into the legislation before contravention or otherwise construing s 247A as permitting penalties for multiple breaches of an order is inappropriate.
[17]
Analysis
In Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503, the High Court said at [39] (p519]:
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (citation omitted). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
The interpretation must be "consistent with the language and purpose of all provisions of the statute": Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 35 at [69].
Section 247A is set out above.
There are five matters that, in our view, are determinative of the Statutory Construction Issue and lead to the conclusion that on its proper construction s 247A of the SSMA only permits the Tribunal to impose a single penalty where an order of the Tribunal is contravened on multiple occasions after it is made.
First, unlike s 147(2) of the SSMA, there is no provision expressly permitting the imposition of a second penalty under s 247A after a penalty has been imposed for the contravention of an order. The Legislature must be taken to have been aware of s 147(2) when the Bill was passed and there is no reason to infer a power greater than the ability to impose a penalty once, even if the contravening conduct continues.
The absence or presence of the definite article "a" does not alter this view.
Second, while dealing with offences under the SSMA and not civil penalties, s 250A similarly indicates the Legislature considered multiple penalties for continuing offences could only be imposed where expressly provided for in the section by which an offence was created. This is so whether the order is "to do or cease to do something". Again, this counts against a construction of s 247A permitting multiple penalties for continuing contraventions.
Third, although s 247A(3) addresses what has been referred to as the "double jeopardy" issue, that is it prevents liability being imposed for a contravention under both that section and the civil penalty provisions and contempt provisions of the NCAT Act, it makes clear that the identified remedies to enforce compliance of Tribunal orders are alternatives: see also s 74 of the NCAT Act.
[18]
Orders
As we have noted above, further submissions are required in respect of some contraventions. In addition, in relation to the established contraventions a hearing about what if any penalty should be imposed is required.
Presently, it is sufficient for us to list the matter for hearing of the outstanding issues, including what, if any, penalty should be imposed.
We make the following orders:
1. On a date to be fixed by the Registrar, the proceedings are to be listed for hearing of the following issues (Outstanding Issues):
1. the issues of contravention identified in these reasons as requiring further submissions;
2. whether any penalties should be imposed and, if so, how much; and
3. costs.
1. The following directions are made in respect of the Outstanding Issues:
1. On or before 7 August 2023 the applicant is to file and serve any submissions (limited to 10 pages) in respect of the Outstanding Issues.
2. On or before 14 August 2023 the respondents are to file and serve submissions in reply (limited to 10 pages) and, in the case of the first respondent, any evidence on the question of what, if any, penalty should be imposed.
[19]
SCHEDULE A
Item No. Date of Order(s) Contravened Date(s) of Contravention Contravention/Description Reference(s)
Mr John Weihen (Chairman of the owners corporation's strata committee), had a conversation with a plumber who was attending the Respondent's Lot to carry out plumbing work.
The plumber then had a phone conversation with someone. He then told Mr Weihen "I was told to ignore you".
Mr Weihen took photos of the Respondent's Lot, the photos demonstrate that a significant amount of building debris, including a toilet and sink, deposited in the Lot's storage area.
3 4th March 2022 4th May 2022 One of the photos shows a tradesman standing in the middle of the Respondent's Lot, with power tools and equipment in the background. The kitchen and adjoining room appear to have been significantly demolished. Affidavit of John Weihen dated 31 May 2022 at paragraphs [39], [41], [43] and [53], Exhibit pp 62 - 66 and 68 - 69.
5th May 2022 On 5 May 2022, the plumbing work continued. Mr Weihen had a telephone conversation with the plumber who stated that he was at Lot 12. Later in the conversation, the plumber stated:
The owner [the Respondent] said if I received any fines she would pay, and she also wanted to know if I knew an electrician because she would pay any fines for an electrician as well.
There was also a text message exchange between Mr Weihen and the plumber. The plumber stated:
I just did a normal plumbing job no damage to any common property […] Before I got aware about the court order, I received 500 dollars deposited for the jobs to install 2 toilets in the unit. I paid 3500 dollars om toilets by myself. Then I can't return the 2 toilets which have been unboxed and the joint traps have been cut. She refused to pay the toilets unless I finished installing. What could I do? I say sorry to all this and I don't want the troubles.
4 4th March 2022 9th May 2022 Mr Weihen observed tradesmen carrying plasterboard into the Respondent's Lot. Affidavit of John Weihen dated 31 May 2022 at paragraph [64].
When, in Ms Robert's presence, Mr Weihen told the tradesmen about the stop work order, he was told by one of the tradesmen "see my boss", who then pointed to the Respondent.
5 4th March 2022 20th May 2022 Mr Weihen heard loud noises emanating from the Respondent's Lot that were consistent with an electric jackhammer or drilling, and saw tradesmen exiting the premises. Affidavit of John Weihen dated 31 May 2022 at paragraph [74].
Mr Weihen subsequently had a conversation with the Respondent. The Respondent admitted that workers were present in her Lot to do work to the floor and she also told Mr Weihen of her intention to remove the kitchen wall in her Lot on 27 May 2022 if she could find someone to do the job.
9th June 2022 Ms Maria Rita Ribiera Aleixo, a lot owner and member of the Applicant, heard construction noises emanating from the Respondent's Lot. She also observed that a notice had been posted by Ms Roberts on the Strata Scheme notice board notifying residents that she intended to remove the kitchen wall on 9 June 2022.
7 7th June 2022 10th June 2022 On 9 June 2022, Ms Aleixo saw that the skip bin was filled with building material, and took a photo. Affidavit of Maria Rita Ribiera Aleixo dated 16 June 2022, Annexures A and B.
On 10 June 2022, she saw tradespeople entering the Respondent's Lot and carrying building materials, and she heard further construction noises coming from the premises.
9 7th June 2022 4th July 2022 Mr Weihen observed tradesmen dressed in work gear carrying out renovation works inside of Lot 12. Mr Weihen also observed a white van in the strata scheme's common parking area, which he attests to have seen onsite on previous occasions when unauthorised works were carried out on behalf of the Respondent. Affidavit of John Weihen dated 8 September 2022, paragraphs [15]-[17] and page 12.
[20]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[21]
Amendments
15 August 2023 - Formatting amendments.
28 November 2023 - Citation correction.
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: 28 November 2023
Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27
Murphy v Farmer (1988); 165 CLR 19; [1988] HCA 31
Project Blue Sky v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28
Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness 49 NSWLR 262; [2000] NSWCA 29
Sloggett v Adams (1953) 70 WN 206
Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190
Owners Strata Plan 37762 v Pham and Ors [2007] 154 LGERA 150; NSWLEC 252
The King v Adams (1935] 53 CLR 563; [1935] HCA 62
The Owners - Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48
The Owners-Strata Plan No. 61285 v Taylor (No 2) [2022] NSWCATCD 118
The Owners - Strata Plan No. 82306 v Anderson [2017] NSWCATCD 85
Trade Practices Commission v TNT Management Pty Ltd ATPR 40-512; (1985) 6 FCR 1
Texts Cited: DC Pearce, Statutory Interpretation in Australia (2019, 9th edition, Lexis-Nexis Butterworths)
Category: Principal judgment
Parties: The Owners - Strata Plan No 4393 (Applicant)
Mei Lan Roberts (First Respondent)
The Commissioner for Fair Trading of the Department of Customer Service (Second Respondent/Intervenor)
Representation: Counsel:
On 7 June 2022, in the second interim application, the Tribunal made the following orders (7 June order) and provided short reasons:
1. The respondent, her servants, agents and contractors are to immediately cease carrying out any further renovation works in and around Lot 12 in SP 4393, and are restrained from carrying out any work in and around Lot 12 SP 4393 until the conclusion of the substantive proceedings or further order of the Tribunal.
REASONS:
The Tribunal accepts (and the respondent does not dispute) that work is continuing in the Lot. The respondent strenuously opposes any order restraining her from carrying on work in the Lot. She says that on 8 March 2022 "Mr John" said that if she did not move into the unit, the stop work order would be stopped. The Owners Corporation denies this allegation. There is no evidence that the Owners Corporation consents to the work continuing, and on the face of the expert evidence, the work is not being carried out in a proper and workmanlike manner.
In these circumstances the respondent should cease and desist from carrying out any further work until the Tribunal hears and determines the substantive application.
2. The applicant has leave to file and serve an amended application in and to the effect of the draft application dated 3 June 2022, with the exception or order 3 seeking a civil penalty.
3. If the Owners Corporation wishes to pursue the application for a civil penalty a separate application should be filed.
The subject of the penalty proceedings is alleged contravention of the above orders.
Further orders were made adjourning the substantive proceedings part heard on 1 July 2022. Those orders included the following:
4. Interim order #1 dated 7/6/22 and made in SC 22/24178 continues to bind the respondent either until further order or until the conclusion of the substantive proceeding namely SC 22/08452.
We will refer to this order as "order 4 made 1 July 2022". However, we will return to its status as an order below.
The interim orders were made under s 231 of the SSMA. This section relevantly provides:
231 Interim orders
(1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may -
(a) make an interim order in the form of any order that could otherwise be made by the Tribunal, and
(b) renew the interim order by giving notice that the order is renewed if a request for its renewal is made not later than 3 months after the order was made.
…
(6) An interim order continues in force until -
(a) the end of the period of 3 months that commenced with the making of the order or any earlier date specified in the order, or
(b) if application is duly made for its renewal - until the renewal is granted or refused, or
(c) if it is renewed - the end of the period of 6 months that commenced with the making of the order or any earlier date specified in the order.
The substantive application was resolved by orders made 30 September 2022 (September orders). The final orders were:
1. By consent, the Tribunal makes orders in accordance with orders 1-7 contained in the Minute of Orders dated 30 September 2022 initialled by the parties' legal representatives and by the Tribunal and placed with the papers.
2. The Tribunal specifically notes the form of the common property rights by-law which is Annexure A to the Minute of Orders and which forms part of Order 6 which is made by the Tribunal.
3. Otherwise, the application is dismissed and costs reserved.
4. The Tribunal notes that the parties seek to have the issue of costs dealt with on the papers pursuant to s.50 of the Civil and Administrative Act 2013 (NSW) and makes the following directions:
4.1 The applicant/costs applicant is to file and serve any written submissions of no more than 7 x A4 pages that it intends to rely upon in respect of a costs application against the respondent on or before Fri 7 October 2022;
4.2 The respondent/costs respondent is to file and serve any written submissions of no more than 7 x A4 pages that it intends to rely upon in respect of such a costs application on or before Fri 14 October 2022;
4.3 The applicant/costs applicant is to file and serve any written submissions of no more than 4 x A4 pages that it intends to rely upon in reply to the respondent's submissions on or before Fri 21 October 2022.
The Minute of Orders dated 30 September 2022 (Minute of Orders) referred to in the September orders was in the following terms:
1. The respondent is within 7 days to retain suitably qualified tradesperson(s) to thereafter address and rectify, within 60 days, the issues identified in items 1 to 5 of the Project Guides Pty Ltd Report dated 9 August 2022.
2. The respondent is to permit reasonable access to Lot 12 by the applicant's qualified supervisor, at times required by the supervisor and arranged in advance, so as to enable that supervisor to inspect, supervise and guide the ongoing work identified in order 1.
3. The respondent is to pay the costs of the inspections referred to in order 2.
4. Set aside any extant stop work orders in proceedings is SC 22/08447, is SC 22/08452 and is SC 22/24178.
5. The respondent is fought with to obtain at her own expense a complying development certificate for the garage steel beam, and if required the beam in the kitchen within Lot 12 in Strata Plan No. 4393.
6. An order pursuant to section 19 of the Strata Schemes Management Act 2015 making a common property rights bylaw in the form next to these orders as "A".
7. Costs reserved and to be dealt with separately.
Having ruled on objections in the owners corporation's case, only Mr Weihen was required for cross examination. Ms Han was not cross-examined.
At the conclusion of the owners corporation's case, Ms Robert presented her evidence.
Ms Roberts relied on affidavits affirmed 29 June 2022, 28 September 2022 and 20 March 2023. The owners corporation's objections to her evidence are found at JB 13-14 of the joint bundle. Rulings on these objections are recorded on the affidavits in volume 3 and 4 of Deputy President Harrowell's joint hearing bundle. For reference purposes these volumes will be marked "MHV 3" and "MHV 4" and placed with the original Tribunal file at the conclusion of these proceedings. Again, where necessary, oral reasons were given for the rulings made.
We should note at this point that some objections were to form, being objections to conversations that were not in first person speech.
Counsel for Ms Roberts submitted there is no rule of evidence requiring evidence of conversations to be given in first person speech. Reference was made to the decision of Barrett J (as he then was) in LMI v Baulderstone 53 NSWLR 31; [2001]; NSWSC 688. At [8]-[10] His Honour said:
8 There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the two Queensland cases to which Mr Campbell took me share a common thread of the witness's inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.
9 The possibility that s.135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report, but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.
10 In the end, I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced. Part 36 r 2 of the Supreme Court Rules reflects a general expectation that evidence will be given viva voce, an expectation very much modified in this Division and modified in a particular way in the Commercial List (Part 36 r 4A and Practice Note 100). However, the primary means based on oral testimony may usefully be resorted to where there are reservations about evidence in affidavit or statement form and where the opportunity can be taken test the witness on whether or not a conversation can be related in direct speech, even if in part only. As Wright shows, it may be useful to have some part of the actual words used, even if the witness cannot remember them all and must resort to descriptive recollection as to the balance.
Most recently, that decision was approved by Jackman J in Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381. His Honour made the following observations about the form of evidence concerning conversations and the principles applicable to dealing with challenges:
123. There is ample authority for the proposition that there is no rule of the law of evidence in Australia that evidence of conversations must be given in direct speech: Commonwealth v Riley (1984) 5 FCR 8 at 34 (Smithers, Sheppard and Wilcox JJ); R v Wright (1985) 19 A Crim R 17 at 19 (Mathews, McPherson and Vasta JJ); R v Noble [2000] QCA 523; [2002] 1 QdR 432 at [20] (Pincus JA, with whom McMurdo P and Mackenzie J agreed); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688 ; (2001) 53 NSWLR 31 at [8] (Barrett J); Hamilton-Smith v George [2006] FCA 1551; (2006) 247 FCR 238 at [79]- [83] (Besanko J). Even as long ago as 1984, the Full Court said in Commonwealth v Riley at 34 that the practice of adducing evidence of conversations in direct speech was probably disregarded as often as it was followed. Evidence should be given in direct speech only if the witness can remember the actual words used: Noble at [20]; LMI Australasia at [8]; Hamilton-Smith at [83].
124. The following passage from the judgment of McLelland CJ in Eq in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 318-319, a case dealing with alleged misleading conduct arising from oral statements (which the plaintiff endeavoured unsuccessfully to prove in direct speech) pursuant to the former s 52 of the Trade Practices Act 1974 (Cth), has often been cited with approval:
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether the spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
125. The passage is characteristically pithy and insightful. I would respectfully add the following observations relevant to the present issue. Whether the evidence of spoken words is sufficiently precise to enable the court to be reasonably satisfied that the words spoken were in fact misleading is plainly a question of degree, not a demand for unattainable perfection. In some cases, that may depend upon the use of a specific word or phrase, but in many cases the court can be reasonably satisfied of the misleading nature of an oral statement from evidence of the substance of what was said. The statement towards the end of the quoted passage, as to what is actually remembered being little more than an impression from which plausible details are then constructed, is particularly pertinent to the present issue, although many would find his Honour's reference to that often occurring "subconsciously" to be overly charitable.
126. The primary duty of a witness is one of honesty. The oath or affirmation binds the witness to tell the truth, the whole truth and nothing but the truth. Witnesses should not be compelled or encouraged into uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech: J.D. Heydon, Cross on Evidence (11th ed, 2017) at [17145], cited with apparent approval by Besanko J in Hamilton-Smith at [81]; and see to the same effect Noble at [4] and [19].
127. The practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the phrase "in words to the following effect") from the witness's actual memory merely of the substance or gist of what was said is logically, ethically and grammatically wrong. It is logically wrong because it reverses the logical process of deriving the meaning or substance of what was said from the actual words which were spoken; one cannot derive (as distinct from guess at) the actual words spoken simply from their gist. It is ethically wrong because the evidence given as a result of that process conceals the true nature and quality of the witness's memory, and conveys a false impression of that memory. It is grammatically wrong because the use of quotation marks indicates as a matter of conventional usage that the relevant expression is a quotation of the exact words which were spoken. It could not be said that this practice is allied to an iron sense of principle.
128. The form in which evidence of conversations is given should reflect the difference between verbatim memory and gist memory. While in general terms gist memory tends to be more stable and durable over time than verbatim memory, possibly because it has engaged with higher reasoning processes which interpret and give meaning to what has been heard superficially, it will often be the case that certain words or phrases can actually be remembered verbatim. It would appear that verbatim memory and gist memory of conversations are not merely different in degree, but are also different in kind: see C.J. Brainerd and V.F. Reyna, "Fuzzy-Trace Theory and False Memory", (2002) 11(5) Current Directions in Psychological Science, pp 164-169.
129. Applying that reasoning, the following general principles apply to the form of evidence of conversations:
(1) The form of the evidence should correspond to the nature of the actual memory the witness has of the conversation: Wright at 19; Noble at [4] and [20]; LMI Australasia at [8]; Hamilton-Smith at [83]. There is no reason in the abstract to think that evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa.
(2) If the witness remembers only the gist or substance of what was said, and not the precise words, then the evidence should be given in indirect speech (also known as reported speech), in terms which reflect the witness's actual memory: Wright at 19; Noble at [4], [20]; LMI Australasia at[8]; Hamilton-Smith at [83]
(3) If the witness claims to remember particular words or phrases being used, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the evidence is otherwise given in indirect speech: see Wright at 19; LMI Australasia at [10].
(4) If the witness genuinely claims to recall the actual words used in a conversation, then the evidence should be given in direct speech; that is, quoting the words as actually spoken: LMI Australasia at [8]; Hamilton-Smith at [83]. Apart from rare cases of photographic memory, this may well be the case where the witness has made a detailed contemporaneous note of the conversation, and has refreshed his or her memory from the note (in which case this should be expressly stated along with the tender of the note).
(5) Evidence given in direct speech should not be prefaced by the phrase that the conversation occurred "in words to the following effect". That expression blurs the important distinction between verbatim memory and gist memory, and leaves the Court unable to ascertain which kind of recollection is being claimed by the witness. This is a different point from the one considered by Bromwich J in Commonwealth Director of Public Prosecutions v Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11], where the only argument against admissibility was the erroneous contention that evidence of conversations can only be given in direct speech of what was actually said.
(6) Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross-examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances). However, the inability to cross-examine in that manner a witness who gives evidence in indirect speech is not unfairly prejudicial within the meaning of s 135 of the Evidence Act 1995 (Cth): LMI Australasia at [9].
While we have set out the above authorities relevant to the issue of the required form of conversations in affidavits where the rules of evidence apply, which might be useful for consideration in future penalty proceedings, we did not receive full submissions on this topic at the hearing.
Rather than embark upon a lengthy legal debate concerning the particular evidence in question, we decided to reject certain paragraphs and granted leave to Ms Roberts to adduce oral evidence on these matters. With the assistance of an interpreter, Ms Roberts subsequently gave oral evidence in chief about various conversations. This included evidence in relation to paragraphs 49, 55, 73 and 74 of her affidavit affirmed 29 June 2022.
Ms Roberts was then cross-examined by Counsel for the owners corporation.
Secondly, where a respondent exercises civil penalty privilege, inferences may be drawn in civil penalty proceedings in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. As to its application two cases are instructive.
In Australian Securities and Investments Commission v Daly (Liability Hearing) [2023] FCA 290 Cheeseman J said at [40]-[43]
40. Having reserved his position until the close of ASIC's case, Mr Daly ultimately elected not to give evidence. ASIC contends that, in the context of civil penalty proceedings, and in circumstances where Mr Daly has not waived his privilege against self-exposure to a penalty, the rule in Jones v Dunkel (1959) 101 CLR 298 applies. ASIC submits that the Court can, and should, draw Jones v Dunkel inferences against Mr Daly on a number of factual matters upon which he did not give evidence but would be expected to have knowledge. The inference for which ASIC contends is that Mr Daly's evidence on certain matters, on which he could have, but did not, give evidence, would not have assisted his defence. Mr Daly did not make submissions on this issue. ASIC did not address submissions on this issue to the position of the other respondents. The same issue arises in relation to them as well as Mr Daly.
41. In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361, Heydon, Crennan and Bell JJ said at [63] to [64] (footnotes omitted):
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.
In cross-examination, Ms Roberts accepted that the plumber had attended her premises to carry out work on 4 May 2022. She was aware the plumber came to her lot on 5 May 2022 but did not know whether the plumber did any work on that day. Ms Roberts denied she told the plumber to ignore Mr Weihen and also denied the conversations concerning paying fines and about whether the plumber knew an electrician.
In submissions, Counsel for the owners corporation first made general submissions concerning credit and the evasive manner in which Ms Roberts answered questions in cross-examination. The owners corporation submitted that in resolving any necessary conflict between the evidence of Mr Weihen and Ms Roberts that we should prefer the evidence of Mr Weihen.
The owners corporation submitted that Ms Roberts had accepted the plumber did work on 4 May 2022 and the Tribunal should be satisfied that the plumber carried out work on 4 and 5 May 2022 in contravention of the 4 March order.
In reply, Counsel for Ms Roberts submitted there was no evidence of the work being done by the plumber. Reference was made to the photographic evidence found at JB 323, 334 and 336, being photographs taken at different times. These photographs show no alteration in the premises between the dates these photographs were taken, suggesting no work was done in these locations.
As to the text messages, Counsel for Ms Roberts submitted that at best these photographs support a view work was being done to the toilets, not that work was being done in and around the unit. In this regard photographs taken 30 May 2022 show no toilets were installed, reference being made to MFI 3 which is a colour copy of the building report (found at JB 415-417) containing relevant photographs.
In making these submissions, Counsel referred to the terms of the 4 March order which restrains Ms Roberts "from carrying out any renovation works in or around Lot 12 of Strata Plan No. 4393 without the written consent of the applicant owners corporation". Counsel submitted that the words "in or around" could not mean adjusting pipework prior to installation.
Finally, the respondent submitted that no inference should be drawn that work had been done in contravention of the order.
Ms Roberts did not submit that the order did not apply to her servants and agents despite the different wording to the 25 February order and the 7 June order.
In our view, the plain meaning of the 4 March order was that renovation work could not be done "in or around" the lot. The expression did not limit work to alterations to the common property or lot property. Nor was there any other limitation that might have constrained the operation of the orders so as to permit works preparatory to installation being carried out on the lot. Rather, it restrained the carrying out of any work in or around the lot.
Having regard to:
1. the evidence of Mr Weihen about his observations on 4 May 2022, including his observations of power tools;
2. The statement made by the plumber to Mr Weihen on 4 May 2022 that the plumber was at the premises to carry out work; and
3. the evidence of Ms Roberts in cross examination that the plumber had attended her premises to carry out work on 4 May,
we are satisfied that the plumber did attend the premises and did carry out work on that day. That is the only conclusion that can be drawn from the evidence to which we have referred.
This is so whether the work is cutting pipes and doing works preparatory to any plumbing installation, the prohibition being in respect of doing work "on or around Lot 12".
There is no suggestion that the plumber was not acting on behalf of Ms Roberts and doing work at her direction on that day. It follows a contravention of the 4 March order is established for 4 May 2022.
As to the position on 5 May 2022, the evidence does not establish the plumber did any work on the premises on that day. To the contrary, the evidence is that the plumber attended the premises on 5 May 2022 to collect his tools, asking Mr Weihen when the order might be lifted so he could complete his work and get paid.
Consequently, we are not satisfied a contravention occurred on 5 May 2022.
In our view, the evidence establishes work was done on 9 and 10 June 2022. The issue is whether Ms Roberts knew of and had notice of, the order.
As to when a decision takes effect, s 61 provides:
61 When decision determining proceedings takes effect
A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.
The 7 June order was a general decision: see s 29(1), (2) and (3) of the NCAT Act.
Section 62(1) requires the Tribunal to ensure each party is given notice of any decision. The form of giving notice is not specified and may be oral. A decision includes an order: s 5 NCAT Act.
At the hearing on 7 June 2022, which Ms Roberts attended and gave evidence, the following exchanges occurred. At JB 983 the Tribunal said:
What the owners corporation is seeking today, is a continuation of the order for the work not to be carried on. So, no work until the final hearing. The owners corporation wants today.
The following exchange then occurred (through an interpreter) at JB 984.5 and following:
Tribunal: This is a very serious matter and it seems from the evidence that Ms Roberts is just to carry out the work in breach of the Tribunal orders, she now says she's relying on this agreement, she is not provided any documents. The Tribunal urges her to get some advice straightaway.
Mr Roberts: Yeah, I will get contact with my lawyer as soon as possible.
Tribunal: Mr Smith [the representative of the owners corporation], do you want to say something to this effect?
Mr Smith: No. I think as outlined before matters (inaudible).
Tribunal: Yes. If I say this it seems to me that today I should continue the stop work order until this matter is heard and all the evidence can be taken into account. Interpreter? Sorry. I miss that response.
Ms Roberts: Yes. I probably agree with you.
Tribunal: All right. So, no more work until the final hearing?
Ms Roberts: In regards to stop all the work. I could not accept this offer.
Tribunal: It's not an offer. It's a ruling.
Ms Roberts: I think the counsel has made appointments with the CBA and also our engineer (inaudible) and it's very hard to get them together. Also, they had (inaudible) for one year. So yes, I cannot accept.
Tribunal: Ms Roberts needs to understand that she cannot carry out any work while the Tribunal is telling her that she can't.
Thereafter, Ms Roberts continued to state that she could not accept what the Tribunal was saying. At JB 986 the discussions continued:
Ms Roberts: I have contacted my lawyer, but I cannot change my schedule.
Tribunal: Well, I can't give her advice, but if she is in contempt of this order, there are consequences which will follow.
Ms Roberts: Yes, I will take the consequences.
In our view, at this point of the hearing the Tribunal made on oral order, variously described at a "ruling" and an "order". Ms Roberts had notice of this order at that time. The order was in the same terms as the 4 March order. It took effect on the day it was given.
The fact written notice was subsequently given did not alter this fact. Therefore, even if the written notice was not received until 14 June 2022, this did not affect the operation of the oral order. In saying so, we should note the form of the order changed in the written notice to include reference to servants, agents and contractors, but nothing turns on that point. In this regard, it was not argued that the absence or reference to her servants etc. meant Ms Roberts was not liable for their acts even if those agents were not bound.
It follows that a contravention is established.
In reply, both the owners corporation and the Commissioner submitted that there is no requirement for mens rea, the issue to be proved being whether there was a contravention, whether or not it was contumacious or casual, accidental or unintentional contravention as that expression is used in He Kaw Teh. In making this submission, both respondents accepted a casual, accidental or unintentional contravention and/or whether there was a reasonable excuse might be relevant to the question of whether a penalty should be imposed and, if so, how much. The owners corporation referred to the Tribunal's decision in The Owners-Strata Plan No. 61285 v Taylor (No 2) [2022] NSWCATCD 118 (Taylor No 2), the Commissioner referring to the decisions of The Owners - Strata Plan No. 82306 v Anderson [2017] NSWCATCD 85 (Anderson) at [88] and Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (Pattinson) at [18].
Section 247A provides:
247A Civil penalties for contravention of orders
(1) The Tribunal may, by order, require a person to pay a pecuniary penalty of an amount of up to 50 penalty units for contravention of an order under this Act (the original order).
(2) An application for the order may be made -
(a) by the applicant for the original order, or
(b) by the owners corporation, owner or other person having or acquiring an estate or interest in a lot in the strata scheme to which the order relates, or
(c) in the case of an order that gives effect to any agreement or arrangement arising out of a mediation session, by either party to the mediation.
(3) A person is not liable to be punished twice if the person's act or omission constitutes both a contravention for the purposes of this section and -
(a) a contravention for the purposes of a civil penalty provision of the Civil and Administrative Tribunal Act 2013, or
(b) a contempt of the Tribunal.
We accept that what is required to establish contravening conduct under s 247A involves construing that section. This seems obviously correct. However, we do not accept that, on its proper construction, s 247A requires proof of an intention to breach an order of the Tribunal or that a contravention that is casual, accidental or unintentional is insufficient to enliven the Tribunal's power to impose a penalty. The section simply requires proof of contravention of an order of the Tribunal made under the SSMA, irrespective of whether it is intentional or unintentional.
Our reasons for this conclusion are as follows.
First, the purpose of the section is to enforce compliance with orders of the Tribunal. It is not an offence provision. While subs 247A(3) speaks of "punished twice", this is in the context of alternative forms of enforcement found in the civil penalty provisions and contempt provision in the NCAT Act. As made clear by the High Court in Pattinson, and as accepted as applicable to s 247A in Taylor No 2 at [51] and following, punishment does not have a role in civil penalty proceedings. Rather, the role of civil penalty proceedings is one of deterrence.
Second, the Tribunal having made an order, it is incumbent on the person bound by the order to take all steps reasonably necessary to comply with that order: Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190 at 194, per Warrington J approved in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 (Mudginberri ) at 112. In this regard, it would be a curious result if a party was effectively relieved from compliance because of some casual, accidental or unintentional contravention.
Third, we think the analysis to be applied is that of Pearlman J in Environment Protection Authority v Waight 125 LGERA 399; [2003] NSWLEC 93. There, in the context of considering the requirements to establish a contempt of a court order had occurred, Her Honour said at [53] and following:
53 The defendant's principal defence was an assertion that the failure to obey the remediation orders was not deliberate or reckless in that he did not intend to breach them but acted to the best of his ability to comply. Mr Laucis put this defence on the basis that mens rea, or intent, is an essential element in a charge of contempt, that it must be proved beyond reasonable doubt, and that the prosecutor had failed to establish to the relevant standard that the defendant had an intention to disobey the remediation orders. Mr Laucis submitted that the very serious penalties which are a possible consequence of a finding of contempt, such as committal to prison, establish that guilty intent must be proved beyond reasonable doubt. He relied upon He Kaw Teh v The Queen (1985) 157 CLR 523 at 535 for the proposition that "[t]he gravity of the offence suggests that guilty knowledge was intended to be an element of it".
54 However, I reject the proposition that mens rea is an essential element in a charge of contempt. Although proceedings for contempt are criminal in nature, that does not "… equate them with the trial of a criminal charge": Witham v Holloway at p 534. The fundamental purpose of contempt proceedings is not only to punish the contemnor - it is also to vindicate the authority of the court: AMIEU v Mudginberri at p 113 and 114. It is the purpose of upholding the effective administration of justice that renders proceedings for contempt sui generis (Morris and Ors v Crown Office (1970) 2 QB 114 at 129). For this reason, He Kaw Teh v The Queen is distinguishable. That was a case dealing with the general principles of the common law which govern criminal responsibility (see pp 527 - 528) and it is not authority for the proposition which Mr Laucis put forward. Furthermore, the proposition is contrary to other authority. In Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190 at 194, Warrington J said, in a passage expressly approved in AMIEU v Mudginberri at 112:
… if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order.
55 That passage was referred to by Southwell J in McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 314. By reference to those authorities, Stein J (as he then was) rejected a similar proposition in Baulkham Hills Council v Australian Kafarsghab (Lebanese) Association Ltd [No 2] (1994) 83 LGERA 168 at 170.
56 In rejecting Mr Laucis' proposition, I am not suggesting that intent is irrelevant for any purpose. It may be important in determining what is an appropriate punishment: Attorney-General v Times Newspapers Ltd and Anor (1992) 1 AC 191 at 217.
See also Owners Strata Plan 37762 v Pham and Ors [2007] 154 LGERA 150; NSWLEC 252 at [56] per Pain J (as he then was).
It follows, having regard to the evidence of Ms Aleixo and Ms Roberts, contravening conduct on 4 July 2022 is, prima facie, established.
However, two further matters arise in relation to this particular contravention.
On one view, order 4 made 1 July 2022 was no more than a notation that Ms Roberts remained bound by the 7 June order. If this is correct, the factual contention that non-compliance on 4 July 2022 was casual, accidental or unintentional has no basis as she had ample time from 7 June to ensure all her contractors had knowledge and complied with the 7 June order.
On the other hand, if order 4 made 4 July 2022 was in fact a new order or a renewal of the 7 June order, a casual, accidental or unintentional contravention would still constitute a contravention for the purpose of enlivening the Tribunal's power to impose a penalty. However, this different factual scenario, if found, may be relevant to determining whether a penalty should be imposed and, if so, how much.
Further, it would appear from order 4 of the Minute of Orders (which form part of the September orders) that order 4 made 1 July 2022 was set aside. If order 4 made 1 July 2022 was the in fact an order regulating events that occurred on 4 July 2022, the fact it was set aside may mean that no contravention has occurred.
We will invite submissions on these matters as part of any submissions on penalty prior to making a ruling on Item 9 of the particulars of contravention.
The submissions were developed orally by the Commissioner before the Tribunal.
First, the Commissioner acknowledged that the issue was not clear-cut. However, the Commissioner submitted that only one penalty could be imposed. This approach, the Commissioner submitted, provided for an orthodox construction of s 247A, the Commissioner drawing a distinction between the language of this section and ss 147 and 250A.
Second, while there had been debate during submissions about the absence of the words "a" or "the" before the word "contravention" in s 247A, this debate did not assist in a resolution of the construction issue. However, the Commissioner reiterated her written submissions at [66]-[69]. At [67] the Commissioner referred to the decision of Adams J in Director of Public Prosecutions v Priestley [2013] NSWSC 407. There His Honour said at [13]:
The penal consequence of disobedience is not immaterial. But it cannot erect into effectiveness a meaning that is not open on the usual canons of construction. The relevance of the penal character of an enactment has been the subject of many statements in the cases. It seems to me that, for present purposes, the applicable rule is adequately summed up in Geddes and Pearce, Statutory Interpretation in Australia, 7th ed (2011) at 298 -
... [The] task of the court is neither to be too ready to convict nor to acquit. The mere discovery of an ambiguity in a penal statute should not automatically mean that a defendant must be acquitted. The court must go further in its inquiry. It must ascertain the legislature's wishes as best it can and then carry out those wishes. Should there be any ambiguity in the statute, the court must endeavour to resolve that ambiguity by the application of the various aids to construction that are applicable to all statutes. Then, and only then, if a doubt still remains as to the meaning of the penal provision should the issue be resolved in favour of the defendant.
Thus, the rule comes into play after the general rules of interpretation have left an unresolved ambiguity: it is a rule of "last resort" (Beckwith v The Queen (1976) 135 CLR 569 per Gibbs J (as his Honour then was) at 576). This is not to doubt that an ambiguity must be resolved in favour of a defendant but the statutory language must genuinely present the necessity to choose between competing interpretations (R v Parr [2009] VSC 166, Whelan J at [16]).
See also Trade Practices Commission v TNT Management Pty Ltd ATPR 40-512; (1985) 6 FCR 1 at 47-48.
In short, the Commissioner's position is that s 247A does not permit multiple penalties for repeated or continuing breaches of an order of the Tribunal.
In oral submissions, the owners corporation said there was an antecedent question, namely whether there are separate orders which have been contravened. In this regard we understood the owners corporation was referring to the 25 February order, 4 March order and 7 June order as being separate orders preventing work being carried out which had each been contravened.
Otherwise, the owners corporation reiterated its submissions that there was a difference between an order to do work and a prohibitive order.
As to a mandatory order, the owners corporation accepted that, ordinarily it could only be breached once. On the other hand, a prohibitive order can be breached on multiple occasions. The owners corporation was not thereby submitting there is a continuing offence. Rather, that there are successive breaches.
As to analysing the conduct said to constitute a contravention of the stop work orders in this case, the owners corporation said there was a need to look at the type of work which had been performed in contravention of the order but not to "slice the onion too thin". The effect of this submission was that the owners corporation was not submitting that every nail hammered into a wall, for example, constituted a separate contravention.
The significance of this fact is that s 247A(1) provides that the Tribunal "may" impose a penalty under that section. However, in such proceedings, the Tribunal may deal with any contravention by way of the contempt provisions (depending on the nature of the conduct as contempt in the face of the Tribunal or by referral to the Supreme Court) or under the NCAT Act civil penalty provisions (subject to the limitation concerning who may bring such proceedings).
As to contempt, s 73 of the NCAT Act relevantly provides:
73 Contempt of Tribunal
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note -
Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
…
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
As such, contrary to there being a lacuna in terms of the power to deal with a series of contravention, the alternative remedies under the NCAT Act to refer contravening conduct to the Supreme Court (which is not limited in the amount of the penalty that can be imposed for contempt) or to seek a civil penalty (the maximum being $11,000 for an individual or $22,000 for a corporation), provides for a gradated response by the Legislature in dealing with contraventions.
In this way, a person seeking to enforce an order using these sanctions may elect to pursue one of three alternative available courses, a choice which would logically be informed by considerations including the ease of making the application, the number of contravening acts and the differences in the maximum sanction depending on the course adopted.
Fourth, it seems to us that the approach of the High Court in Adams in construing statutes imposing a criminal sanction should be adopted in construing civil penalty provisions. As with criminal penalties, civil penalty provisions legislation should not be construed as extending any penal provision without clear language.
In passing, we should note that 247A speaks of "the person's act or omission" which constitutes both a contravention of that section or the civil penalty provisions or contempt provisions of the NCAT Act. While the use of the singular might suggest each contravening act is separately actionable in penalty proceedings, the expression "act or omission" refers to both the singular and the plural: s 8(b) of the Interpretation Act 1987 (NSW). Consequently, this matter does not alter our view.
Fifth, the approach is consistent with the manner in which the courts deal with restraining orders in contempt proceedings.
In Mudginberri, the High Court considered the permissibility of a fine calculated by reference to the days of continuing contravention of a restraining order preventing picketing by the union. The fine imposed operated to increase the amount payable in the event the contravening conduct continued after the date the order was made imposing a fine for contempt.. At 113-4 the plurality said:
In our opinion, the Chief Judge imposed the daily fine in respect of a then presently existing contempt which was continuing in conformity with an attitude of determined disobedience earlier expressed by the Secretary of the Union. It was not a case of successive contempts. There was one contempt which began with the refusal of the Union to abide by the interlocutory injunction granted by Beaumont J. and was continuing on 21 June 1985 when the matter was before Bowen C.J. (emphasis added). There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end.
That is, the Court concluded that there was one contempt that was continuing on each day the conduct continued.
It might be thought the Full Federal Court in Yazaki took a different view. There, the Court said at [226]-[230]:
226. Before analysing the contravening conduct and its interrelationship, we turn to the legal principles applicable to our analysis. In determining the appropriate penalty for a multiplicity of civil penalty contraventions, courts have had regard to two related principles that originate in the criminal law: the "course of conduct" or "one transaction" principle and the "totality" principle. They are not rules, but principles or tools to assist the Court in arriving at an appropriate penalty.
227 We make this preliminary observation. It is not appropriate or permissible to treat multiple contraventions as just one contravention for the purposes of determining the maximum limit dictated by the relevant legislation. We do not understand the contrary to be decided by the Full Court in CFMEU v Williams [2009] FCAFC 171; 262 ALR 417 (Moore), Middleton and Gordon JJ). In support of the contrary position, Yazaki relied upon the statement of the Full Court in Williams at [31] as follows:
In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ).
228. This statement was made in the context of the Full Court re-exercising the sentencing discretion and based upon the acceptance (on the facts before the Full Court) that there was effectively one activity or one offence (see [15] and [25]), adopting the approach taken in Mornington Inn Pty Ltd v Jordon [2008] FCAFC 70; 168 FCR 383.
229. The Full Court was not saying that as a matter of law or principle, in applying the course of conduct tool of analysis, it was appropriate or permissible to treat multiple contraventions as just one contravention for the purposes of determining the maximum limit to consider as a yardstick in reaching the appropriate penalty.
230. At [37] of the relief judgment the primary judge recorded by reference to [31] of Williams that the application of the course of conduct "tool of analysis" did "not mean that a number of contraventions become one contravention, but rather, where it is appropriate to apply the approach, a number of contraventions may be treated as if they attract one penalty. But, with respect, to treat a number of contraventions as subject to one maximum penalty (as we think his Honour did here) is to treat them, impermissibly, as one contravention.
However, it is clear from the Court's reasons that there were separate contraventions and that a penalty could be imposed for each such contravention as permitted by the Competition and Consumer Act 2010 (Cth).
As to the second reading speech of the Bill providing a contrary indicator, what was said provides no clear indication that the Legislature intended the Tribunal to have power to impose multiple penalties for successive contraventions. The other contextual matters to which we have referred count against such a grant of power having been intended.
Finally, we note that in imposing a penalty, the Tribunal might:
1. Make the amount of the penalty conditional upon future conduct; or
2. Make an ancillary order or further order concerning future conduct which, if contravened, might give rise to a further application under s 247A concerning contravention of such ancillary order.
In this way, the Tribunal has a range of options available to it in determining penalty proceedings including imposing appropriate penalty and/or making other appropriate orders for the purpose of deterrence and securing compliance with orders it has made.
In reaching this conclusion we should make one additional point.
As raised in submissions, there is an antecedent question as to what orders had in fact been made. Where there are separate orders requiring separate action, which should properly be considered as imposing discrete obligations, we see no reason in principle why a penalty could not be imposed by the Tribunal under s 247A of the SSMA in relation to a contravention of each order. Of course, the principles in Pattinson remain applicable in determining the amount of individual penalties and the total amount of penalties which should be imposed by reason of the contravening conduct.