HIS HONOUR: On 28 January 2011, a two-Commissioner Bench of this Court, comprising Commissioners Brown and Galwey, heard an application pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2006, an application that had been made by Dr Pham, the Applicant in these contempt proceedings. The Respondents on that occasion were Mr Papaioannou and his late wife. The motion that is currently before the Court is a charge of contempt alleging that Mr Papaioannou, as the surviving Respondent, has failed to comply with Order (5) of the orders made by the Commissioners in their determination of the tree dispute application.
The application was heard on site on 28 January 2011 and the Commissioners promptly delivered a decision on 9 February 2011, a decision reported as Pham v Papaioannou [2011] NSWLEC 1044. Order (5) made by the Commissioners on that occasion was that:
(5) The Respondents are to maintain, at their cost, trees T4 to T7 at a height of no more than 500 millimetres above the height of the Colorbond fence, or 1.6 metres above the level of the path adjoining the fence on the adjoining property.
I am satisfied, on the basis of Exhibit K to the affidavit of Dr Pham in these proceedings, that there is no ambiguity in the terms of Order (5), because 500 millimetres above the height of the fence, and 1.6 metres above the level of the path on Dr Pham's property, are a single, coincidental height and no issues of uncertainty arise.
It is, before we move to the detail of the matters which I need to address, appropriate to note that Mr Papaioannou, in his most recent evidence, said that "The Court has to decide the solution to the problem".
I need to say to Mr Papaioannou that the Court decided the solution to the problem on 9 February 2011 and the Court ordered what was to be the solution to the problem, having balanced the competing views of the two neighbours - the decision being what should be done to balance the need for privacy in Mr Papaioannou's rear yard and the protection of the views from Dr Pham's property.
There is no merit decision, whatsoever, lying with me in these proceedings.
It is appropriate that I record that the evidence that is appended to, and forms part of, Dr Pham's affidavit establishes that, at a variety of times during the period between 4 March and 7 July 2019, the heights of trees T4 to T7 were in excess of 500 millimetres above the height of the Colorbond fence between the properties. In that regard, although Mr Papaioannou has pleaded not guilty to the charge of contempt laid against him in the Statement of Charge in these proceedings, and on the basis that he has not contested the accuracy of the depiction of the various photographic pieces of evidence demonstrating that Order (5) of the orders of 2011 have not been complied with, it is necessary that I find him guilty of contempt for breaching those orders.
It is also, however, a question that, in doing so, I must consider what is the appropriate penalty to be imposed on him.
Mr Papaioannou has made it clear, during the course of his oral evidence, that he considered that the obligation that he had as a result of those orders was to prune the hedge to 500 millimetres above the height of the fence. He then, on his own evidence, acknowledges that, during a period after the pruning to that height, the hedge will grow.
He accepted, both in his own words and on the evidence of Mr Willis, Dr Pham's expert arborist giving evidence in these proceedings, that the Lilly Pilly trees that comprise the hedge will, in certain circumstances, grow vigorously and, it being the estimate of Mr Willis, that it was likely that they would grow by up to 500 millimetres per year in ordinary seasonal circumstances.
Unfortunately for Mr Papaioannou, the obligation is not to trim to 500 millimetres and then, at appropriate intervals thereafter, to trim resultant growth back to that height.
The order that was determined as the appropriate result of the tree dispute between Dr Pham and the Papaioannous was that the maximum height that was to be permitted to the hedge was 500 millimetres above the top of the fence.
The necessary consequence of that was that any ongoing pruning undertaken by Mr Papaioannou had to be one which accommodated growth after pruning so that that growth did not exceed 500 millimetres above the top of the fence.
Whether that buffer for growth of the hedge was to be a matter of 100 millimetres or 500 millimetres, or any other height, was a matter that was left to Mr Papaioannou and the frequency with which he was prepared to prune his hedge, so that at no time did it exceed the maximum height permitted by Order (5) of the Court's orders.
It is necessary for me then to consider how I should approach dealing with Mr Papaioannou's contempt.
It is clear from the decision in Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 that, as explained by Basten JA in those proceedings, the conventional provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) do not apply. However, the Sentencing Procedure Act, although not applying as a matter of law, can provide some guidance as to how I should approach the sentencing of Mr Papaioannou for contempt.
Ten factors were also identified as relevant to sentencing for contempt charges by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183. Only a number of those are relevant for consideration in these proceedings.
However, it is appropriate that the seriousness of the contempt is a factor to which I have to have regard. Others are:
1. the reason for that contempt;
2. whether there is any expression of contrition or remorse;
3. the question of the character and antecedents of Mr Papaioannou;
4. questions of general and personal deterrence; and
5. the necessity to denounce the contempt and uphold the reasoning of, and basis for, the terms of orders of the Court.
In these regards, the guidance that is given by s 21A(3) of the Sentencing Procedure Act provides some utility in assisting me.
First, I observe that although Mr Papaioannou has not pleaded guilty, Mr Papaioannou gave evidence in the witness box today that he has no prior offending conduct of civil or criminal type. That is a factor to take into his account as a positive factor on sentence.
It is also the position that Mr Papaioannou appears to have proceeded, at least to some limited extent for the reasons I have earlier explained, on a significant misunderstanding of the nature of the orders that were made in 2011.
I trust I have disabused him of his misunderstanding of the nature of those orders. If I have not done so sufficiently, I now repeat that the obligation that is imposed by Order (5) made by the Court on 9 February 2011 is that:
(5) The Respondents are to maintain, at their cost, trees T4 to T7 at a height of no more than 500 millimetres above the height of the Colorbond fence, or 1.6 metres above the level of the path adjoining the fence on the adjoining property.
This requires that the hedge is to be trimmed so that at no time does it exceed 500 millimetres above the top of the fence located on the boundary between Mr Papaioannou's property and Dr Pham's property, with that order expressly applying to trees T4, 5, 6 and 7 - there being no dispute, at least as I understand the position, between the parties as to which those trees are amongst the vegetation grown on Mr Papaioannou's property along the boundary.
It is also the position that, in the orders now sought, there is a proposal in Order (5), as I raised with Mr Gunning, counsel for Dr Pham, that I should order an arborist to report on the current state of the hedge to demonstrate, by expert certification, that Mr Papaioannou's contempt has been purged. This proposition is one which is without proper evidentiary basis, as the most recent photographic evidence I have is of 7 July 2019, and there is no proper evidentiary basis before me that I could make draw conclusion concerning the state of the hedge at the present time.
I observe that Mr Papaioannou tendered photographs, that are in Exhibit 4, of a device that he uses to measure a 50-centimetre - 500-millimetre - height above the top of the fence in order to prune the height of the trees to be in what he had understood was compliance with the orders of the Court. I make the observation to Mr Papaioannou that he may need to adjust the height of his device in future when he determines the height to which he wishes to prune the hedge and the frequency with which he proposes to undertake that activity.
It is necessary for me to categorise Mr Papaioannou's contempt. The most serious class of contempt is one which is described as contumacious. Below that falls wilful, and below that falls minor or trifling or accidental contempt.
I am satisfied that Mr Papaioannou's contempt, he being aware of the nature of the orders, is wilful. I am certainly not satisfied that it rises to the status of being regarded as contumacious, in that I have no basis to conclude that Mr Papaioannou has deliberately, and on an organised basis, set out to breach order (5) that was made in 2011. I am satisfied, as I have earlier indicated, that there has been a lack of understanding on his part of the nature of the obligation that is imposed on him.
There is a need of a limited basis to provide a statement by penalty that is of a general deterrent nature. I am at least hopeful that, in light of the explanation I have given to Mr Papaioannou of the nature of his obligations, there is no particular reason to impose a sentence of specific deterrence on him, as I think it likely that he will now understand his obligations and seek to discharge them.
In that sense, I note that there is absolutely no reason why he needs to cut the hedge back sufficient to accommodate a full year's growth of 500 millimetres. I accept Mr Willis' evidence that it might be of significant impact if pruning to that extent, on a one-off basis, was to be undertaken. However, it is in Mr Papaioannou's hands as to how much below 500 millimetres above the top of the fence he wishes to prune, and at the frequency he undertakes subsequent pruning, to ensure that the orders of 2011 are satisfied.
I now turn, having concluded that it is appropriate to convict Mr Papaioannou of contempt, to the question of costs. Application has been made that I should order Mr Papaioannou to pay Dr Pham's cost on the indemnity basis. When I enquired of Mr Gunning as to what those costs might be, if I was minded to make an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (Civil Procedure Act), by making a gross sum costs order, I was advised that the total costs, including expert witness fees, would be $47,126. Whilst that is reflective of what might be seen as an entirely disproportionate dispute concerning the pruning of this hedge, nonetheless, they were expenses necessarily incurred in order to have Mr Papaioannou brought before the Court and advised, in a proper fashion, of the necessity to comply with Order (5) of the orders of the Court dated 9 February 2011.
There is no hard-and-fast rule that mandates that costs be awarded on an indemnity basis in contempt matters. That would be the consequence that would necessarily follow from me ordering costs in the gross sum of $47,126.
However, for the reasons set out by O'Callaghan J in AGL Energy Limited v Hardy (No 3) (2017) FCA 952 at [8] and [9], it is reasonable that someone who is seeking to enforce the orders of a Court, whether they are doing it for reasons of public enforcement of public rights or private enforcement of private rights, would have the expectation that they would not be left out-of-pocket for that enforcement action being taken as a consequence of the breach of the orders of the Court.
I am satisfied, under those circumstances, that it is not only appropriate that I make an indemnity costs order, but that I make an indemnity costs order in a nominated gross sum, being that which I have recently outlined.
Mr Emile Papaioannou, you are convicted of contempt of the Court in that you have failed, between the period of March to July 2019, to comply with Order (5) of the orders of this Court made on 9 February 2011.
Given that I am satisfied that your contempt has been occasioned in significant part by a misunderstanding of the nature of the obligations, I am satisfied that it is appropriate to impose a small fine only on you and I therefore fine you the sum of $500 in punishment for that contempt.
It is a long-settled proposition that costs are compensatory and not punitive, so, by making a indemnity costs order against you for Dr Pham's costs, I am not punishing you further, I am merely compensating Dr Pham for the costs of the necessity to bring these proceedings.
[2]
Orders
The orders of the Court are:
1. The Respondent is found guilty of contempt;
2. The Respondent is fined $500.00; and
3. The Respondent is ordered to pay Applicant's costs, pursuant to s 98(4)(c) of the Civil Procedure Act 2005, in the amount of $47,126.00
[3]
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Decision last updated: 22 November 2019