The Owners - Strata Plan No 4393 v Roberts

Introduction

1. 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.
2. 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.
3. 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.
4. 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).
5. 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]".
6. 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.
7. 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.
8. 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).
9. 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.

Orders made by the Tribunal in the original proceedings

1. 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.
2. 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.

Allegations of contravention

1. 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.
2. 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.
3. 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.
4. 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.

Hearing of the application

1. The penalty application was heard on 29 March 2023 and 4 April 2023.
2. 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.
3. 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.
4. The hearing on the Contravention Issue did not conclude on 29 March 2023. The proceedings were adjourned part heard to 4 April 2023.
5. 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.
6. Despite the manner in which the hearing proceeded, we will deal with the Statutory Construction Issue after we deal with the Contravention Issue.
7. As to the Contravention Issue, the hearing of this part of the application proceeded over 29 March and 4 April 2023.
8. 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.
9. 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.

Contravention Issue

1. 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.
2. Before doing so we will deal with the issue of when inferences can be drawing in penalty proceedings.

When can inferences be drawn?

1. The parties agree inferences can be drawn from evidence to establish a contravention.
2. 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".
3. Reference was made to Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 per Williams, Webb and Taylor JJ at 480.
4. 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).

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].

1. 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.

Item 3 - Contraventions on 4 and 5 May

1. 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.
2. 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.
3. 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.
4. 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".
5. 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?
6. 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.
7. 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.

Items 4 - Contravention on 9 May 2022

1. This alleged contravention concerns Mr Weihen observing tradesmen carrying plasterboard into the respondent's Lot.
2. 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.
3. 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.
4. 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.
5. 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.
6. It follows a contravention of this item is not established.

Item 5 - Contravention on 20 May 22

1. This contravention involves the claim there was electric jackhammering or drilling being conducted on the premises on 20 May 2022.
2. 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.
3. 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.
4. 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.
5. 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.

Item 7 - Contraventions on 9 and 10 June 2022

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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).

Item 9 - Contravention on 4 July 2022

1. 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.
2. 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.
3. In response to the claim of contravention on 4 July 2023, the respondent submitted that "mens rea" must be proven.
4. 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.
5. 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.
6. 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".
7. Both the applicant and, as noted above, the Commissioner made submissions on the topic.
8. 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."
9. Reference is made to two decisions of the High Court.

Statutory Construction Issue

1. This issue concerns whether the Tribunal can impose multiple penalties if an order is successively contravened and, if so, in what circumstance.

Commissioner's submissions

1. 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.

Applicant's submissions

1. 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".
2. 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.

Ms Roberts' submissions

1. 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).
2. 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.
3. 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.
4. 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".
5. 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.

Analysis

1. 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."
2. 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].
3. Section 247A is set out above.
4. 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.
5. 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.
6. The absence or presence of the definite article "a" does not alter this view.
7. 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.
8. 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.

Orders

1. 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.
2. Presently, it is sufficient for us to list the matter for hearing of the outstanding issues, including what, if any, penalty should be imposed.
3. 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.

    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.

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

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