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[2025] NSWLEC 53
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-02
Pritchard J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wollondilly Shire Council v Khoder (No 2) [2025] NSWLEC 53
Hearing dates: 12 September 2024, further submissions on 17 and 24 September 2024
Date of orders: 02 June 2025
Decision date: 02 June 2025
Jurisdiction: Class 4
Before: Pritchard J
Decision: The Court makes the following orders:
(1) Pursuant to Part 55, Division 4, rule 13 of the Supreme Court Rules 1970 (NSW), Mr Ihab Walid Khoder is fined $6,375 for failure to comply with order 1 of the Court’s orders made on 6 February 2024 in proceedings 44746 of 2024.
(2) Mr Ihab Walid Khoder to pay the fine in order 1 to the Registrar of the Land and Environment Court, who is to pay such fine to Wollondilly Shire Council (Council) pursuant to s 694(1) of the Local Government Act 1993 (NSW).
(3) Mr Ihab Walid Khoder to pay on an indemnity basis Council’s costs of and incidental to Council’s notice of motion filed on 12 February 2024 seeking orders that Mr Khoder be found guilty of contempt.
The Court notes that order (3) does not include Council’s costs in relation to the substantive Class 4 proceedings commenced by Council on 5 February 2024 by way of summons.
Catchwords: SENTENCE – civil contempt – failure to comply with court orders – guilty plea – wilful contempt – capacity to pay a fine – fine imposed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 9.34, cl 6 of Sch 5
Fines Act 1996 (NSW) s 6
Local Government Act 1993 (NSW) s 694
Land and Environment Court Rules 2007 (NSW) r 6.3
Supreme Court Rules 1970 (NSW) Pt 55, r 13
Uniform Civil Procedure Rules (2005) r 33.13
Wollondilly Local Environmental Plan 2011 (NSW)
Cases Cited: Bankstown City Council v Nitopi [2019] NSWLEC 40
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Baulkham Hills Shire Council v Naklicki [2008] NSWLEC 316
Baulkham Hills Shire Council v Naklicki (No 2) [2008] NSWLEC 317
Bayside Council v Zein [2023] NSWLEC 42 Blacktown City Council v Hambly (No 3) [2023] NSWLEC 141
Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80
Blacktown City Council v Reid [2003] NSWLEC 120
Canterbury City Council v Ali Ahmed [2016] NSWLEC 160
Circuit Finance Australia (recs and mgrs apptd) (in liq) v Sobbi [2010] NSWSC 912
Commonwealth Bank of Australia v Salvato (No.5) [2013] NSWSC 924
Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390
Council of the City of Sydney v The Owners Strata Plan 18820 [2017] NSWLEC 81
Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407
Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14
Darter v Diden; Darter v Yanto; Darter v Mansibui (2006) 94 SASR 505; [2006] SASC 152
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120
Environment Protection Authority v Dib Hanna Abdallah Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80
Environment Protection Authority v Hanna (2013) 195 LGERA 383; [2013] NSWLEC 41
Fairfield City Council v Camilleri [2024] NSWLEC 56
Fairfield City Council v Camilleri [2019] NSWLEC 95
Georges River Council v Hamade [2023] NSWLEC 71
Green (a pseudonym) v R [2025] NSWCCA 16
He v Sun (2021) 104 NSWLR 51; (2021) 292 A Crim R 38; [2021] NSWCA 95
Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20
Liverpool City Council v Tirnova [2020] NSWLEC 110
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mirus Australia Pty Ltd v Gage [2018] NSWSC 35
Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20
NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97
Palerang Council v Banfield (No 2) [2012] NSWLEC 158
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210
Pittwater Council v Martoriati [2013] NSWLEC 84
Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275
Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264
Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495
Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Re Group Pty Ltd v Kazal (No 4) [2017] FCA 1084
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Sun v He (No 2) [2020] NSWSC 1298
Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee [2024] NSWSC 237
Tate v Duncan-Strelec [2020] NSWSC 52
Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Wollondilly Shire Council v Khoder [2024] NSWLEC 5
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Texts Cited: Judicial Commission of New South Wales, “Community correction orders” in Sentencing Bench Book (March 2022)
Category: Sentence
Parties: Wollondilly Shire Council (Applicant)
Ihab Khoder (First Respondent)
Representation: Counsel:
R White (Applicant)
R Coffey and A Hannam (First Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
File Number(s): 2024/44746
Publication restriction: Nil
On 5 February 2024, Wollondilly Shire Council (Council) commenced, by way of summons, Class 4 proceedings seeking declarations and orders against Mr Ihab Khoder (the first respondent), Mr Vince Vella (the second respondent), and Ms Connie Vella (the third respondent).
By notice of motion filed on 12 February 2024, Council seeks orders that Mr Khoder (and not the second or third respondents in the substantive Class 4 proceedings) be found guilty of contempt (the contempt motion):
2. That the First Respondent be found guilty of contempt of the Court in that, between 8 February 2024 and 9 February 2024, in breach of Order 1 (the Order) made by the Honourable Justice Pritchard on 6 February 2024, the First Respondent received fill (as defined in the Order) and spread the fill on the land known as 2339 Silverdale Road, Silverdale (Lot 2 DP 866061), without first obtaining a lawful consent to do so under the provisions of the Environmental Planning & Assessment Act 1979.
3. That the First Respondent, be punished for disobeying the Order made by the Honourable Justice Pritchard on 6 February 2024.
4. That such further or other orders may be made as the Court thinks appropriate, whether pursuant to s 135(1) of the Civil Procedure Act 2005 or otherwise, with respect to the enforcement of the Orders made by Justice Pritchard on 6 February 2024.
5. That the First Respondent pay the Appellant’s costs of and incidental to this application on an indemnity basis.
- The First Respondent is guilty of contempt of Court in that on 8 February 2024 and 9 February 2024, and in breach of Order 1 made by the Honourable Justice Pritchard on 6 February 2024, the First Respondent received fill (as defined in the order) and spread the fill on the land known as 2239 Silverdale Road, Silverdale (Lot 2 DP 866061), without first obtaining a lawful consent to do so under the provisions of the Environmental Planning & Assessment Act 1979.
On 16 August 2024, Mr Khoder entered a plea of guilty to the amended statement of charge.
The contempt proceedings were listed for hearing on sentence on 26 August 2024. However, the hearing was vacated following pro bono counsel being identified and able to assist Mr Khoder on a later date.
The hearing on sentence for contempt was heard before me on 12 September 2024.
The main issue to determine is the appropriate sentence to be imposed on Mr Khoder for contempt.
Counsel for Mr Khoder asked the Court, if it is minded to fine Mr Khoder, to consider suspending any fine pursuant to r 13 of Part 55 of the Supreme Court Rules 1970 (NSW) (SC Rules). Part 55 r 13(3) provides that the Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
1. Until further notice, the respondents, their servants, agents and invitees be restrained from receiving fill on the property at 2339 Silverdale Road, Silverdale (Lot 2 DP 866061) (the land) and or undertaking earthworks involving the spread of fill on the land.
2. The parties approach the Registry with a view to obtaining a date in the Court’s Friday list for directions in relation to the preparation of the matter for hearing.
1. Until further notice, the respondents, their servants, agents and invitees be restrained from receiving Fill on the property at 2339 Silverdale Road, Silverdale (Lot 2 DP 866061) (the land) or the removal of any Fill (whether blended or deposited on the Land) or undertaking earthworks involving the spreading of Fill or the blending of Fill with any material on the land. For the purposes of the Order Fill includes soil, rocks, building waste, and other material imported onto the Land.
2. The parties approach the Registry with a view to obtaining a date in the Court’s Friday list for directions in relation to the preparation of the matter for hearing.
On 8 February 2024, Mr David Savage, compliance team leader at Council, personally served a copy of the sealed 6 February 2024 orders (together with the penal notice) on Mr Khoder by handing him a copy of the orders between 1:16pm and 1:35pm.
On 12 February 2024, Council’s solicitor emailed Mr Khoder a copy of the statement of charge, the contempt motion filed on 12 February 2024 commencing these contempt proceedings, and the supporting affidavit of Mr Savage dated 12 February 2024, and advised Mr Khoder that Council had commenced contempt proceedings against him.
On 7 March 2024, Mr Khoder’s solicitor emailed Council’s solicitor advising that he had been instructed “to concede that [Mr Khoder] unintentionally breached the court order of 6 March 2024”. The parties agreed that the Court could be satisfied that Mr Khoder was served with the 6 February 2024 orders (and that the penal notice was attached to them).
On 10 May 2024, the Court made orders by consent requiring Mr Khoder to serve his evidence by 27 May 2024.
On 24 May 2024, Mr Khoder’s solicitor filed and served a notice of intention of ceasing to act. On 31 May 2024, the notice of ceasing to act was filed.
On 21 June 2024, there was no appearance by Mr Khoder at a directions hearing before Pain J. Her Honour set the contempt proceedings down for hearing on 10 July 2024, and directed Council on that same day, namely 21 June 2024, to advise Mr Khoder of the hearing date by way of email, telephone and registered post.
On 10 July 2024, Mr Khoder appeared unrepresented at the scheduled hearing. He sought and was granted an adjournment in order to seek legal advice to enable him to enter a plea. The Court set a further hearing date for 29 August 2024, and the matter was adjourned until 25 July 2024 for mention.
On 25 July 2024, Mr Khoder sought and was granted a one week adjournment. On 1 August 2024, he did not appear at the adjourned directions hearing. At a directions hearing on 16 August 2024, Mr Khoder pleaded guilty to the charge of contempt of the Court.
On 19 January 2024, Council first became aware of fill and earthworks activity at 2339 Silverdale Road, Silverdale, Lot 2 in DP 866061 (the land**/property**), “following receipt of a number of complaints”. Mr David McEwan, a senior compliance officer at Council, inspected the land on that date and observed fill on the land and machines working on the fill, undertaking earthworks. Council’s searches disclose no development consent for earthworks on or for the importation of fill to the property.
The land is zoned RU2 Rural Landscape in the Wollondilly Local Environmental Plan 2011 (NSW) (WLEP). The importation and deposition of fill and the undertaking of earthworks is a breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) because it is development which is only permissible with development consent in the RU2 rural landscape zone, and consent has not been obtained for those works.
On 19 January 2024, Mr McEwan spoke with Mr Khoder who admitted responsibility for importing the fill and for the earthworks. On that same occasion, Mr McEwan also spoke with the second respondent in the substantive Class 4 proceedings, Mr Vince Vella, one of the owners of the land, and with the third respondent. According to the SOAF, Mr Khoder was apparently renting part of the land from the second and third respondents.
Mr McEwan deposed that he advised each of the first and second respondents that the importation of the fill and the earthworks were unlawful activities because no development consent had been obtained. He advised them both that the works should cease immediately.
On 22 January 2024, following reports of further work on the land, an emergency development control order (the DCO) was given to each of the respondents pursuant to s 9.34 and cl 1 in Part 1 of sch 5 to the EPA Act. The order was reissued to Mr Khoder on 23 January 2024 because of an error in his email address.
On 23 January 2024, Ms Robyn Cooper, officer of Council, manager, health and regulatory services, and Mr McEwan telephoned Mr Khoder. Mr Khoder admitted that he had read the DCO sent to the second respondent. He advised that he would not stop work on the property. On that same day, another Council officer, Mr Ray Coleman, attended and observed trucks enter and exit the property.
On 24 January 2024, Mr McEwan again attended the property and observed that works were continuing and that numerous trucks were entering the property. That afternoon, Council, through its solicitors, advised the first, second and third respondents in writing that it would seek to obtain an interlocutory injunction on 5 February 2024. It was agreed that on 24 January 2024 when Mr McEwan attended the property, none of the respondents was handed the DCO.
On 29 January 2024, Council was again advised that various trucks were entering and leaving the property. According to the SOAF, a show cause letter was emailed to the first and second respondents.
On Friday, 2 February 2024, at 2pm, Mr McEwan attended the property and observed an excavator loading a truck, further trucks in the property, and trucks entering and leaving the property. That afternoon, Council, through its solicitors, advised the first, second and third respondents in writing that it would seek to obtain an interlocutory injunction on Monday, 5 February 2024. None of the respondents provided a response to Council.
On 5 February 2024, Council filed a summons in which it sought, inter alia, an interlocutory injunction restraining the first, second and third respondents from carrying out or permitting the continued importation of fill material on the land and the carrying out of earthworks involving the spread of fill without first obtaining development consent for those works.
On 6 February 2024, Council obtained an injunction from the Court. Mr Savage served the Court’s orders on the first respondent Mr Khoder on 8 February 2024.
At the time the first respondent Mr Khoder was served with the 6 February 2024 orders, Mr Khoder did not advise Mr Savage that he was unable to read or understand English, or that he required a translator in order to understand the meaning of the orders and the penal notice served on him.
On the afternoon of 8 February 2024, Mr Savage observed Mr Khoder return to the work area at the rear of the land and continue to operate an excavator to spread around the land fill that was being deposited by trucks. That afternoon, Mr Savage observed between 10 to 15 trucks enter and leave the land, and trucks manoeuvring into the rear of the land. He observed fill inside the trucks when they entered the land and that the same trucks were empty when they exited the land.
On 9 February 2024, Mr Savage again visited the land, arriving at 11:49am, and observed the gates to be open. When he arrived, there were 8 trucks on the land. He observed at least another 8 large trucks entering and leaving the land, and a man operating an excavator moving and spreading the fill.
Council read selected paragraphs of the following affidavits:
affidavit of Mr David McEwan, senior compliance officer at Council, dated 2 February 2024; and
affidavits of Mr David Savage, compliance team leader at Council, dated 12 February 2024 and 19 April 2024.
Council tendered:
an aerial photograph of the land dated 25 January 2024 and aerial photographs of the location of works and the depositing of material dated 8 and 9 February 2024;
email correspondence between Mr McEwan and Mr Khoder dated 22 and 23 January 2024 in which Mr McEwan stated: “As advised I believe the activities being undertaken at the property needs a formal planning approval and without that approval the activity of importing, sorting spreading and removing material should cease immediately”; and
a photograph of a letter to Mr Khoder dated 23 January 2024, headed “Emergency Development Control Orders.”
In his affidavit dated 2 February 2024, Mr McEwan deposed that:
on 22 January 2024, he caused the three samples of bonded sheet material he had collected from the land to be posted to Airsafe for analysis of asbestos contamination;
later that day, he telephoned Mr Khoder and told Mr Khoder that he had sent the samples for asbestos testing;
on 25 January 2024, Airsafe confirmed that the items received had tested positive for Chrysolite asbestos; and
on 25 January 2024, Mr McEwan emailed Mr Khoder to advise him that the samples sent for asbestos testing had tested positive for Chrysolite asbestos.
Mr McEwan was not required for cross-examination.
Mr Savage was required for cross-examination by the first respondent.
In cross-examination by Mr Khoder’s counsel, Mr Savage agreed that he had a conversation with Mr Khoder on 24 January 2024, and that that was the first occasion on which he had personally met Mr Khoder. Mr Savage said that if someone is from a foreign country he imagined that an accent would “suggest a second language maybe”.
Mr Savage made the following observation about Mr Khoder:
A. From my observations of the conversation that was held with Mr Khoder beforehand, he seemed to have a very good grasp of the English language …
Mr Savage agreed that “Council does not have a policy or procedure of actively asking a person in which they’re handing a document to ensure they have the ability personally to read and comprehend a document”. Mr Savage said he believed “some documents” are “translated or interpreted” into other languages.
Mr Savage accepted that he did not give any consideration when dealing with Mr Khoder on 8 February 2024 as to whether to ask him whether he needed the document interpreted into another language.
In re-examination, Mr Savage said that on 8 February 2024, Mr Khoder did not indicate to him that he did not understand what Mr Savage had said, and that Mr Khoder did not say “I’m sorry I don’t read English, or I don’t understand English very well, or words to that effect”. Nor did Mr Khoder ask for a translator.
In re-examination, Mr Savage gave the following evidence as to why he did not give consideration to providing Mr Khoder a translator:
Q. Can you assist the Court as to why you did not give any consideration to that?
A. From witnessing Mr Khoder interacting with David McEwen when I was on that inspection, he understood what was being said and what was being asked of him.
Mr Khoder’s counsel Mr Coffey read the affidavit of Mr Ihab Walid Khoder, dated 5 September 2024. Mr Khoder was not required for cross-examination.
In his affidavit, Mr Khoder said that he was born in Lebanon and moved to “Sydney … in December 2017”. Prior to moving to Sydney, he “did not speak, read or write in the English language”. He said that his ability reading English was “extremely limited”. Mr Coffey said from the bar table that during the course of preparing the affidavit, he read each line of the affidavit to Mr Khoder.
Mr Khoder deposed that on 19 January 2024, he had a conversation with “a man from Council”, and that he “did not truly understand that the man had the right to stop me”.
Mr Khoder deposed that on 23 January 2024, he “spoke with Mr Savage and that he said he had sent me the written stop work order”. Mr Khoder said that he “did not properly understand what this meant”, and that he thought it was a matter between the second respondent, Mr Vella, and Mr Savage.
Mr Khoder said that on 8 February 2024 “a different man from the Council … gave me a copy of the Court Order”. Mr Khoder said “I suggested I understood … I did not really understand what the Court Order meant. I just wanted … my work finished … I also did not actively go looking for anyone to get help”.
Mr Khoder apologised for not complying with orders of the Court, and said: “I have no excuse for not complying … I have let my family in Lebanon and Australia down”.
Mr Khoder’s personal circumstances included that he moved to Sydney around December 2017 to be with his wife who was pregnant. His daughter was born on 5 January 2018. In September 2018, Mr Khoder and his former wife separated.
Mr Khoder said that he would not be able to drive in Australia until at least February 2025 following the suspension of his NSW licence in 2024 as a result of accruing “a range of demerit points connected to traffic related offences”. This had significantly impacted his ability to obtain work as he is not able to travel across Sydney or operate machinery. The media coverage of these proceedings has resulted in people not wanting to offer him work.
Mr Khoder deposed to his weekly expenses, his lack of savings, his ineligibility for Centrelink support, his inability to pay child support and his financial reliance on his father. He said that he did not want to return to Lebanon as this would likely prevent him from returning to Australia to see his daughter. He said that he has no money to comply “with the items that the Council wants”.
Moreover, he deposed, he no longer has access to the two excavators he previously owned. The first was a small 3.5 tonne machine for which he paid $20,000. The second was a much larger machine that he purchased for $40,000. To pay his former lawyers, Mr Khoder sold the second machine for $35,000. He still has the small machine, but it is being used by a friend in exchange for assistance that they have provided to Mr Khoder financially since he has been out of work.
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.
6 Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
Part 55 of the SC Rules applies in relation to contempt of Court in proceedings in Class 1, 2, 3, 4 or 8 of the Court’s jurisdiction. [2]
Rule 13 of Div 4 of Part 55 of the SC Rules provides as follows in relation to punishment:
13 Punishment
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.
(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
694 Application of penalties
(1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is—
(a) to be paid to the council, and
(b) to be allocated by the council to the council’s consolidated fund.
(1A) In subsection (1)—
breach of this Act or any other Act means—
(a) a contravention of or failure to comply with this Act or any other Act, or
(b) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act or any other Act.
this Act or any other Act includes a regulation or other instrument made under this Act or any other Act.
…
(5) In this section—
(a) a reference to proceedings instituted by the council includes—
(i) a reference to proceedings instituted under the direction or on behalf or for the benefit of the council, and
(ii) a reference to penalty notices issued by or under the direction or on behalf or for the benefit of the council, and
…
Pursuant to Part 55 r 13 of the SC Rules, where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre, a fine, or both. There is no maximum penalty specified in the LEC Rules, the SC Rules, or the EPA Act in relation to a finding of contempt.
In contempt proceedings, the moving party bears the onus of establishing the contempt charge beyond reasonable doubt, irrespective of whether the alleged contempt is civil or criminal. [3] A plea of guilty is to the essential elements of the charge, not to each fact. Council continues to bear the onus of establishing essential facts beyond a reasonable doubt.
The underlying rationale of the exercise of the Court’s power to punish for contempt is to protect the effective administration of justice by demonstrating that a court’s orders will be enforced: Fairfield City Council v Camilleri [4] (Camilleri), Robson J at [31]. The purpose of the law in civil contempt proceedings is to compel obedience, rather than to punish disobedience which is the domain of criminal contempt: Re Group Pty Ltd v Kazal (No 4), [5] Perram J at [73].
In Blacktown City Council v Hambly (No 3) [6] (Hambly (No 3)) at [21], the Court said as follows in relation to the distinction between civil and criminal contempt, citing Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway at 530:
The distinction between civil and criminal contempt is “that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.” However, disobedience of a court order amounts to a criminal contempt if it involves deliberate defiance or if it is contumacious.
In a series of cases, it has been recognised that the distinction between civil and criminal contempt is largely illusory because, in both cases, the charge has to be proven beyond reasonable doubt and the usual outcome is punishment. [7]
While both wilful and contumacious contempt involve intentional non-compliance with a court order, contumacious contempt is of larger gravity and renders what would otherwise be civil contempt as criminal contempt because it involves conscious defiance of a court's order and its authority: Camilleri, Robson J at [28]-[29]. See also Georges River Council v Hamade [8] (Hamade), Pepper J at [41].
In Queanbeyan City Council v Sun (No 2), [9] Biscoe J held at [17] that although the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) does not apply directly to sentencing for civil contempt, its sentencing factors apply by analogy. In Owners Strata Plan 18820 at [46], Robson J considered the CSP Act to provide both guidelines and a framework to the Court when considering civil contempt.
In Camilleri, Robson J said at [30] as follows in relation to the application of the CSP Act in contempt proceedings, referring to the decision of Payne JA in Council of New South Wales Bar Association v Rollinson (No 2) (Rollinson): [10]
The Court’s power to punish a contemnor is inherent in its function as a superior court of record and, to the extent that there may previously have been some doubt, it is now clear that this power is not subject to criminal law sentencing statutes including the Crimes (Sentencing Procedure) Act 1999 (NSW); Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46]; Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 at [60] (‘Rollinson’).
… In my summary, the factors, which are overlapping, compromise:
1. the seriousness of the contempt proved;
2. the contemnor’s culpability;
3. the reason or motive for the contempt;
4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;
5. whether there has been any expression of genuine contrition by the contemnor;
6. the character and antecedents of the contemnor;
7. the contemnor’s personal circumstances;
8. the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct; and
9. the likely effect that punishment will have on the contemnor, including any hardship it might cause.
The seriousness of the contempt is an important factor in determining the appropriate sentence to be imposed. [12] Ascertainment of the seriousness of the contempt requires consideration of the nature of the contempt. [13] The applicant bears the onus of proving any facts and circumstances that aggravate the seriousness of the contempt. [14]
Council submitted that Mr Khoder did not cease the importation “and or” undertaking of earthworks (involving the spreading of fill) on the land after he was served with the 6 February 2024 orders. On 8 and 9 February 2024, Mr Khoder demonstrated a disregard of his obligation to comply with the orders of the Court. Council submitted that on those dates, Mr Khoder not only failed to take positive actions to ensure that the Court’s orders were complied with (for example, by locking the gates), but he actively breached the orders by working the excavator to spread the fill around the land (on 8 February 2024), and by continuing to permit trucks to deposit fill (on 8 and 9 February 2024).
At the hearing on 12 September 2024, Council accepted Mr Khoder’s submission that the evidence that it had served was not capable of establishing beyond a reasonable doubt that the asbestos located on the land was deposited after the 6 February 2024 orders were served at 1:35pm on 8 February 2024. Accordingly, there is insufficient evidence to establish that asbestos was deposited on or spread within the land in the period of the charged contempt.
However, at the hearing, Mr White submitted for Council that Mr Khoder had been advised by Mr McEwan early on 25 January 2024 that “waste which had been previously imported onto the land under his control did contain - or was likely to contain asbestos and that he was advised … not to continue to spread it around the land…” The presence of asbestos contributed to the objective seriousness of the contempt.
Ordinarily, this conduct would fall at the higher end of objective seriousness.
In relation to the events of 9 February 2024, the evidence establishes that Mr Khoder was not present during the period that the acts were observed to being carried out on the land in contravention of the 6 February 2024 orders. However, Mr Khoder accepted, by reference to his plea of guilty, that he had responsibility to take steps to prevent acts occurring that would breach the orders. His counsel submitted that the objective seriousness was at the lower end of the range.
In relation to the contention by Council in its written submissions of 20 August 2024 about the “large” quantity of fill deposited on the land, there was no evidence before the Court that established the load size of each truck. Further, there was no evidence as to whether each truck deposited an entire trailer load of fill, or some lesser amount.
While I do not find that the evidence establishes beyond a reasonable doubt that asbestos was deposited or spread within the period of the charged contempt, or that a “large” quantity of fill was deposited on the land, I find, as Mr Khoder accepted, that he had responsibility under the orders to take steps to prevent acts occurring that would breach the orders. Mr Khoder not only failed to take positive actions to ensure that the Court’s orders were complied with, but he actively breached the orders by working the excavator to spread the fill around the land (on 8 February 2024), and by continuing to permit trucks to deposit fill (on 8 and 9 February 2024).
I find that Mr Khoder’s offending falls within the middle of the range of objective seriousness.
Council submitted that Mr Khoder was aware or ought to have been aware of the consequences of his breach of the 6 February 2024 orders because Mr Savage personally served those orders, including the accompanying penal notice, on Mr Khoder on 8 February 2024. Mr Khoder was present on the land on 8 February 2024 and personally undertook works of spreading the fill by operating the excavator. Whilst he was not present when Mr Savage visited the land on 9 February 2024, he has admitted to being responsible for organising the delivery of fill to the land.
Mr Khoder accepted whilst he was aware of the 6 February 2024 orders, as detailed in his evidence, his “complete comprehension” of the orders was impacted. This did not excuse his contempt but provided “colour and complexion”.
In relation to culpability, I find that Mr Khoder was aware or ought to have been aware of the consequences of his breach of the 6 February 2024 orders. I am not satisfied that the defendant has established, on the balance of probabilities, that his comprehension of the 6 February 2024 orders was in any relevant way impacted.
Council submitted that there was no evidence before the Court establishing any reason for the contempt.
Mr Khoder submitted that he provided evidence in his affidavit of 5 September 2024 that he did not properly understand the 6 February 2024 orders. Whilst this did not excuse the contempt, nor excuse that he did not ask for assistance to understand the orders, his personal circumstances provided “context”.
I find, as submitted by Council, that there was no evidence before the Court establishing any reason for the contempt. The defendant has failed to establish, on the balance of probabilities, that he did not properly understand the 6 February 2024 orders or that his personal circumstances provided any relevant “context”.
60. I find that general deterrence is an important part of any sentencing calculation and particularly where the Court’s orders were made in circumstances where the defendant actively participated in (and indeed agreed to) the entry of orders in the primary judgment; and where it was aware of the facts and matters with which Council was originally concerned. In relation to deterrence, both general and personal, I accept, and I note the comments of Kirby J in Pelechowski v Registrar, Court of Appeal:
Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, ‘serious and lasting damage to the fabric of the law may result’...
61. This commentary is particularly apposite in relation to a breach of a court order relating to a prohibition in planning law, as the overall operation of the planning system depends on a high level of compliance. As I noted above, harm to the regulatory system is caused by a breach such as the present. In these circumstances, other similar businesses must be deterred from flouting both orders of a court and planning regulation in this way.
Specific deterrence is aimed at preventing an offender again from engaging in conduct, whether by act or omission, which breaches Court orders. Specific deterrence is an important part of the sentencing calculation to ensure that Mr Khoder does not engage in conduct in breach of Court orders in the future.
Mr Khoder submitted that as the contempt has finished and was for a very short period, specific deterrence was not a matter that should be given substantial weight. Further, the subjective circumstances of Mr Khoder and the substantial legal costs to which he will be liable for the contempt proceedings are sufficient for the purpose of specific deterrence and to ensure his compliance with any future Court order, especially in circumstances in which Mr Khoder has no access to the land since the 6 February 2024 orders.
Likewise, general deterrence is an important part of the sentencing calculation and a significant consideration in the imposition of a penalty for contempt. [16]
Mr Khoder accepted that there is a need for general deterrence in relation to compliance with Court orders to ensure that those who may be otherwise inclined to flout the authority of the Court are not tempted to do so and that the efficacy of the Court and the administration of justice is maintained. [17] Further, Mr Khoder accepted that the overall operation of the planning system depends on a high level of compliance. A breach of Court orders relating to compliance with planning law harms the regulatory system. [18] However, in relation to his subjective factors, Mr Khoder submitted that the present matter is not an appropriate vehicle for general deterrence to be a factor to which significant weight is afforded.
I find that some weight should be accorded to the need for specific deterrence as I have found that Mr Khoder was aware or ought to have been aware of the consequences of his breach of the 6 February 2024 orders. I am not satisfied that his comprehension of the 6 February 2024 orders was in any way relevantly impacted.
Likewise, I find that some weight should be accorded to the need for general deterrence. Mr Khoder accepted that there is a need for general deterrence in relation to compliance with Court orders to ensure that those who may be otherwise inclined to flout the authority of the Court are not tempted to do so and that the efficacy of the Court and the administration of justice is maintained. Mr Khoder accepted that the overall operation of the planning system depends on a high level of compliance.
The task of the Court is to seek even-handedness in sentencing for contempt. However, each case ultimately turns on its own facts, and a sentence in one case does not demonstrate the limits of a sentencing judge’s discretion. [19]
Council provided the Court with a table of comparable cases summarising the main facts underlying and sentences imposed in the following cases: Blacktown City Council v Jason Gabriel Saker (No 4) [20] (Saker (No 4)), Camilleri, Blacktown City Council v Nitopi [21] (Nitopi), Blacktown City Council v Reid [22] (Reid), Environment Protection Authority v Hanna [23] (Hanna), Hambly (No 3), Baulkham Hills Shire Council v Naklicki [24] (Naklicki) and Baulkham Hills Shire Council v Naklicki (No 2) [25] (Naklicki (No 2)).
In Saker (No 4), following a hearing in which contempt was established, the contemnor was sentenced for failing to comply with Court orders. The orders were that the contemnor engage a suitably qualified person to prepare a waste management plan and provide it to Council. Pepper J found that the contemnor was aware of the orders, but by their own admissions elected not to take any action. The contempt was characterised as wilful and contumacious and had a moderate objective seriousness (at [83]). The contemnor was considered highly likely to reoffend and had an extensive criminal record (at [92]). Pepper J imposed a penalty of $40,000 and a suspended periodic monthly fine of $10,000 until the contempt was purged (at [131]).
In Camilleri, the contemnor pleaded guilty to not complying with Court orders to cease to use specified land for the purposes of a waste or resource management facility and to remove from the land all waste materials. Robson J held at [38] that the contempt was “wilful as it was not technical nor contumacious”. Robson J at [58] noted that Mr Camilleri had not shown any contrition or remorse and that he had at the time of the sentencing hearing “limited financial means”. Mr Camilleri was fined $20,000 and ordered to pay indemnity costs.
Nitopi concerned non-compliance with two Court orders in relation to waste removal at Mr Nitopi’s business. The first order was to remove half of the waste from a property, and the second was to remove the remainder of the waste. Moore J characterised the contempt as wilful. For contempt of the first order, the contemnor was fined $5,400. For contempt of the second order, taking into account totality and his guilty plea, the contemnor was fined $72,000.
Reid concerned non-compliance with an order to remove waste and transfer it to a licenced waste management facility within a five-week period. The chief judge, Pearlman J, found that the contempt was serious because of the environmental consequences and the continued disobedience of the order. Her Honour sentenced the contemnor to prison for a period of six months and suspended the prison sentence on four specific terms which required removal of 50 tonnes of waste per calendar month from the site.
Hanna concerned Mr Hanna’s operation of a transport business that involved transporting solid waste. Mr Hanna pleaded guilty to failing to comply with an order to be restrained from transporting waste, including asbestos waste. In relation to financial circumstances, Pain J noted that Mr Hanna had “limited to no ability to pay any fine” (at [72]), and that Mr Hanna’s previous outstanding fines of over $200,000 had had no deterrent effect (at [73]). Pain J found that the contempt was contumacious and committed without regard for public safety (at [56]). Her Honour sentenced the contemnor Mr Hanna to prison for three months which was suspended for three months on condition that he enter into a good behaviour bond under the since repealed s 12(1) of the CSP Act (at [89]).
In Hambly (No 3), following a hearing in which he was found guilty, the contemnor Mr Hambly was sentenced for non-compliance with Court orders to cease using unauthorised structures, to remove all unauthorised structures from the land, and to pay Council’s costs. The Court found that the contempt was intentional rather than contumacious (at [32]), and was at the upper end of objective seriousness (at [39]). The Court fined Mr Hambly $20,000 and imposed a periodical monthly fine of $2,000 until the contempt was purged (at [82]).
Naklicki and Naklicki (No 2) concerned Mr Naklicki’s non-compliance with orders seeking to restrain him from depositing fill on his land without the consent of Baulkham Hills Shire Council. Sheahan J found that the contempt was serious and wilful (at [20]). Sheahan J fined the contemnor Mr Naklicki $30,000 and ordered that he pay the respondents costs of $65,000 and take responsibility and fund remediation works (at [29]).
Mr Khoder submitted that the Court has observed that the range of penalties imposed in cases of wilful contempt have generally been in the range of $7,500-$50,000 with higher penalties (over $20,000) being imposed in cases involving environmental harm or the risk of environmental harm. [26] In more recent decisions, the Court has considered this range of penalties to be appropriate. [27]
I have considered the range of penalties imposed in these cases in fixing the penalty to be imposed here, mindful that the task of the Court is to seek even-handedness in sentencing for contempt, but also that each case ultimately turns on its own facts.
On 16 August 2024, Mr Khoder entered a guilty plea (after the matter was first set down for hearing on 10 July 2024).
Mr Khoder submitted that if a guilty plea is entered at the earliest reasonable opportunity, the Court may allow a maximum discount of 25%. [28] Although 16 August 2024 was not the first available date for the entry of a plea, it was an agreed fact that through his former solicitor, Mr Khoder had indicated an intention to accept responsibility since 7 March 2024. Further, at the time the plea was entered, Mr Khoder was unrepresented.
I find that Mr Khoder is entitled to a discount of 15% in light of the circumstances in which he entered a plea of guilty on 16 August 2024.
A monetary penalty for contempt is subject to the provisions of the Fines Act. [29] Pursuant to s 6(1) of the Fines Act, in the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration.
Whilst Mr Khoder’s capacity to pay is a relevant consideration, it may not be decisive: Darter v Diden; Darter v Yanto; Darter v Mansibu, [30] Doyle CJ at [29]-[31]; and Mahdi Jahandideh v The Queen, [31] Rothman J at [17] (Hoeben CJ at CL and Beech-Jones J agreeing). The fact that other sentencing considerations may justify imposing a fine even in circumstances where the offender is unlikely to be able to pay was further considered by Preston CJ of LEC in Environment Protection Authority v Dib Hanna Abdallah Hanna [32] where his Honour said at [267] (citations omitted):
… whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine.
93. If it is concluded that the evidence establishes that an offender’s financial resources will result in the penalty imposing a considerable burden, for example pushing a smaller corporation to the verge of insolvency, or over, as Basten JA discussed in Silver City at [58], that must be taken into account in arriving at the fine imposed.
94. But while the result of that consideration may be that a lower penalty than that which would otherwise have been imposed will be arrived at, that will not necessarily be the result. That is because consideration of evidence of means is a relevant, but not decisive matter and in the particular case, a fine may need to be increased, rather than decreased because, for example, of the need to deter the offender: Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]-[17].
95. Even if the fine imposed is lower than it would otherwise have been in the absence of evidence as to means, that will not preclude a substantial fine being imposed. That is because every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime …
It was submitted for Mr Khoder that any fine imposed should be moderated to take into account his financial situation, as set out above at [53]-[55]. Mr Coffey, appearing for Mr Khoder, submitted that Mr Khoder is a “man of little means” with “very limited capacity to earn” enough for daily living “let alone to pay the penalty”.
In reply in oral submissions, Council submitted that there was no evidence that Mr Khoder had no capacity to work.
In fixing the penalty to be imposed here, I have had regard to the submission on behalf of Mr Khoder, and Mr Khoder’s evidence, that he is a person of little means and has a limited capacity to earn a daily living, let alone to pay the penalty. However, whilst Mr Khoder’s capacity to pay is a relevant consideration, in light of the authorities set out above at [100]-[107] I do not consider it to be decisive in the circumstances here. Other sentencing considerations, in particular, the need to deter Mr Khoder, as well as to achieve general deterrence justify imposing a fine in a certain amount, even if Mr Khoder is unlikely to be able to pay the fine. As Schmidt J observed in Morris McMahon at [95], every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the CSP Act, [34] which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime.
The parties agreed and I am satisfied that this Court has power pursuant to r 13 of Part 55 of the SC Rules to suspend a fine in a contempt case: Registrar of the Court of Appeal v Maniam (No 2) [35] (Maniam), Kirby P at 319 (Mahoney JA and Hope AJA agreeing at 320-321); He v Sun [36] (He v Sun), Bell P at [39] and [66] (Gleeson and McCallum JJA agreeing).
However, neither party was aware of any decision where this Court has exercised the power to impose a fine, but then suspended it, including on terms. The closest example was submitted to be Cumberland Council v Khoury [37] (Khoury) where Moore J (at [130]) sentenced Mr Khoury to a term of imprisonment of ten months, but wholly suspended the sentence on conditions that he enter into a recognisance to be of good behaviour and to notify the Registrar of the Court within two days of moving to any new residential address during the currency of the recognisance.
Mr Coffey, appearing pro bono for Mr Khoder, submitted that the Court has power to suspend the payment of a fine on terms which may include a requirement to be of good behaviour or to complete community service. Mr Coffey referred, in particular, to the 2021 decision of the Court of Appeal in He v Sun, and submitted that the Court there considered the power to punish for contempt in civil proceedings as follows:
there are no “comprehensive specific criteria” which tell a court when a case is one fit for a suspended sentence. There is no single correct sentence, and the judge is to be afforded as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Bell P at [58] (Gleeson JA agreeing at [60]);
the question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case-by-case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence, and the subjective circumstances of the offender: Bell P at [54] (Gleeson JA agreeing at [60]);
while the function of dealing with a person for contempt in civil proceedings has much in common with the sentencing task in criminal proceedings, they reflect the exercise of different powers serving different purposes: McCallum JA at [63]; and
the principles developed to guide the discretion of a sentencing judge in criminal proceedings do not necessarily apply without qualification to the task of punishing for contempt committed in connection with civil proceedings, although there is likely to be considerable overlap: McCallum JA at [66].
Bell P at [11] also referred to the primary judge’s finding that if the Court were satisfied that it is inexpedient to inflict any punishment other than nominal punishment (s 10 of the CSP Act), conviction with no other penalty (s 10A of the CSP Act) and a suspended sentence of imprisonment (s 11 of the CSP Act), did not apply or were not available. However, there was a power to suspend a sentence of imprisonment or a fine or a combination of both under r 13 of Part 55 of the SC Rules (Gleeson JA agreeing at [60]).
In supplementary submissions on behalf of Mr Khoder dated 17 September 2024, Mr Coffey accepted that the CSP Act does not apply and that it is not possible to “expressly use an alternative statutory sentencing option”. He submitted that the Court of Appeal in He v Sun did not “approve of the primary judge’s finding about the limited sentencing options”, and that the position adopted by the primary judge in He v Sun was not consistent with earlier appellate authority, nor the practice adopted by the Supreme Court.
Mr Coffey referred to the following decisions of the Court of Appeal and the Supreme Court:
In 1992 in Maniam, the Court of Appeal held that although there was no express power to impose a condition that the contemnor perform community service as a condition of suspending a fine, the power to punish for contempt derives from the inherent power of the Court, and pursuant to that power and the power under r 13(3) of Part 55 of the SC Rules, the Court could impose a community service order: at 319A-D (Kirby P), 320G (Mahoney J), 321A (Hope AJA).
In 2013 in Commonwealth Bank of Australia v Salvato (No 5) [38] (Salvato (No 5), Garling J at [77] suspended the operation of a term of imprisonment on the condition that the contemnor pay a fine and not engage, within the period of suspension, in conduct which was found to be in contempt of Court.
In 2021 in He v Sun at [40], the Court of Appeal cited two decisions where sentences had been suspended subject to good behaviour bonds or to undertake rehabilitation. The first was Khoury discussed above at [120]. The second was Prothonotary of the Supreme Court of NSW v A [39] (Prothonotary v A) where Bellew J imposed a sentence for contempt of court arising from the contemnor refusing to take an oath or affirmation as a witness in a criminal trial in the District Court. His Honour imposed a term of imprisonment, but suspended the execution of the order of imprisonment on the condition that the contemnor entered into a good behaviour bond. Khoury and Prothonotary v A were decided prior to the 2018 decision of the Court of Appeal in Dowling v Prothonotary of the Supreme Court of New South Wales [40] where the Court of Appeal held that the CSP Act did not apply in relation to proceedings for contempt in the civil jurisdiction of the court: at [46], [57]-[58] (Basten JA) (Meagher JA agreeing at [139]). At [46], Basten JA said:
Neither the subject-matter, scope and purpose of the Sentencing Procedure Act, nor the procedures, processes and purposes of the law of contempt suggests that the Sentencing Procedure Act should apply with respect to proceedings in the civil jurisdiction of the court for contempt.
I do not take the requirement to give security for good behaviour as limiting the conditions attaching to a suspension of any such penalty. … Further, just because SCR, r 55.13 empowers the Court to impose a fine or commit a contemnor to a correctional centre does not preclude a Court from determining that neither sanction should be imposed and, say, the making of a declaration or an order as to costs will serve the purposes of punishment.
(1) Corrective Services NSW is to supervise Mr Ibrahim for the term of the bond, namely 2 years, but may suspend (may thereafter reinstate) supervision at an earlier stage if considered appropriate by Corrective Services NSW.
(2) Supervision is to be undertaken by Corrective Services NSW with respect to both general and treatment conditions set out in the orders. In the event of any suspected or known non-compliance of a condition by Mr Ibrahim, Corrective Services NSW must notify the Court so that the Court can take such further action (including issuing a warrant for arrest if required) as the Court considers appropriate.
Mr Coffey submitted that it was not clear from the judgment whether Yehia J proceeded on the basis that the court had power to require Corrective Services NSW to supervise the contemnor during the period of the bond, or whether such a matter was considered and a letter from Corrective Services NSW recorded an agreement to carry out such a supervisory function.
Mr Coffey acknowledged that his written submissions on behalf of the contemnor Mr Khoder were “not a substitute for evidence”. However, in view of the pro bono basis of his representation of Mr Khoder (being a direct brief to counsel without an instructing solicitor), he had made enquiries with the Crown Solicitor’s Office (who acted for the Prothonotary in Prothonotary v Ibrahim), and was advised that Corrective Services NSW reviewed and agreed to the supervision conditions of the bond. Mr Coffey acknowledged that it may be that this Court requires additional enquiries to be made, and that it is likely that Council’s solicitor is best placed to contact the Crown Solicitor’s Office and/or apply to the Registrar of this Court to make an order under r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) seeking production of a document or thing “in the custody of the court or another court”, for instance the Supreme Court. In the circumstances of Mr Coffey’s representation of Mr Khoder, there were limitations on such enquiries being carried out.
Mr Coffey submitted that the ability in contempt matters to make an order requiring the contemnor to enter into a good behaviour bond to be supervised by Corrective Services NSW, outside the CSP Act, “is of particular importance to all NSW Superior Courts”. Further, Mr Coffey submitted that in view of the requirement of supervision by Corrective Services NSW in Prothonotary v Ibrahim, the Court is likely to be assisted by further enquiries being made with Corrective Services NSW and/or the Crown Solicitor’s Office, to enable consideration of imposing a bond with conditions to be of good behaviour and supervision.
Alternatively, Mr Coffey submitted, the Court might determine to impose a fine stayed or suspended on the condition that Mr Khoder enter into a bond for a specified period with conditions that he (1) be of good behaviour; (2) must not commit any offence; and (3) must not engage, within the period of suspension, in any conduct which is found to be in contempt of Court.
If the Court finds that supervision of a bond by Corrective Services NSW is not available, Mr Coffey submitted that it remains open to the Court to impose a bond requiring Mr Khoder to be of good behaviour “without more”. Adopting such an approach would “not place any onus” on Council to monitor Mr Khoder. It would be unfair to a respondent in contempt proceedings if they were not able to obtain the benefit of a bond because an applicant, whether a public authority or natural person, is unable to carry out a monitoring or supervision function.
Council’s research demonstrated that, typically, decisions to suspend sentences, including fines, have been made subject to terms of good behaviour and undertakings to undergo rehabilitation. For example:
in Maniam at 318G and 319D (Kirby P), the medical practitioner who was found guilty of contempt was sentenced to a fine which was suspended on the condition that he perform 100 hours of voluntary service as a medical practitioner;
in Mirus Australia Pty Ltd v Gage, [45] the contemnor deleted electronic files and data for the purpose of preventing that data being available for use in Court proceedings: at [2] (Ward CJ in Eq). The fine was suspended on terms that were designed to ameliorate the disadvantage to which the plaintiff had been put in seeking to establish its case at trial: at [84] (Ward CJ in Eq);
in Corry (No 8), [46] referred to above at [125(4)], the Court imposed a fine of $15,000 which was suspended on condition that Mrs Corry perform 25 hours of community service for a school, church or other registered charitable organisation; and
in Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee [47] (Sundarjee), Nixon J at [87], [156]-[162] suspended the fine on the condition that the contemnor perform 100 hours of voluntary service for a community organisation.
Council submitted that alternative ways of dealing with convicted persons outside “the traditional fine and imprisonment” should be designed “to meet both the public interest and the justice of the case”: Maniam at 321B (Hope AJA). Whilst the function of dealing with a person for contempt in civil proceedings has much in common with the sentencing task in criminal proceedings, it remains the case that the court is exercising different powers serving different purposes. The underlying rationale of “every exercise of the contempt power” is to “uphold and protect the effective administration of justice”: Prothonotary v Ibrahim at [26] (Yehia J). Therefore, in determining punishment for contempt, it is appropriate to bear in mind the purposes of punishing the contemnor: deterring the contemnor and others in the future from committing like contempt and denouncing the conduct concerned in an approximately emphatic way: Maniam at 314B (Kirby P). Accordingly, Council submitted that a suspended fine is, in substance, a lesser sentence compared to the imposition of a fine, payable immediately: He v Sun at [44] (Bell P) (Gleeson and McCallum JJA agreeing).
Significantly, Council noted that Mr Khoder had made no offer of community service and submitted that the Court should not impose a condition akin to community service. The preferable course submitted by Mr Khoder was for his fine to be suspended on the basis of him entering into a good behaviour bond and to comply with a number of conditions for the term of the bond. The source of this sentence is derived from the decision in Prothonotary v Ibrahim. In that case, the contemnor was convicted of contempt for refusing to give evidence at a murder trial and the contemnor's sentence of imprisonment was suspended on the basis of a good behaviour bond for 2 years and compliance with a number of conditions including supervision by Corrective Services NSW; attendance at rehabilitation; and continuation of treatment by his doctors. The Court was satisfied that the “onerous conditions” attached to the bond addressed “the contemnor's rehabilitation, considerations of personal deterrence and the protection of the community”. The notation to the orders identified clearly that there was a necessity for supervision of the orders, in that case by Corrective Services NSW (because the suspended sentence in that case was a suspended term of imprisonment).
Council submitted that Mr Khoder had not advanced any conditions or explained how a good behaviour bond (with conditions) could be supervised by Corrective Services NSW in circumstances where a suspended term of imprisonment was not being imposed. Mr Khoder, correctly, did not submit that Council could readily monitor compliance with a good behaviour bond, either of the type imposed in Prothonotary v Ibrahim (with conditions attached) or in the alternative proposed by Mr Khoder, namely that any fine be stayed or suspended on the condition that Mr Khoder enter into a bond for a specified period with conditions that he:
(a) is to be of good behaviour;
(b) must not commit any offence;
(c) must not engage, within the period of suspension, in any conduct which is found to be in contempt of Court.
The alternative proposal was inadequate because the proposed conditions were unable to be monitored. Accordingly, the sentence would not meet either the public interest or the justice of this case, and there would be no unfairness in the Court declining to impose a suspended sentence subject to the imposition of a good behaviour bond in circumstances where the conditions were unable to be supervised.
If, however, the Court were minded to impose a fine but suspend it on terms, Council submitted that the terms should be that Mr Khoder undertake a minimum number of hours of voluntary service at an appropriate organisation of Mr Khoder’s choosing. Council had no objection to that voluntary service taking place outside working hours or on weekends so as to preserve Mr Khoder’s ability to continue to earn an income.
Finally, if the Court were minded to impose a fine without suspending it, Council requested that the fine be ordered to be payable to Council pursuant to s 694 of the Local Government Act.
In the circumstances of the contempt here, I do not consider it appropriate to suspend the fine to be imposed on Mr Khoder. In determining punishment for contempt, it is appropriate to bear in mind the purposes of punishing the contemnor: deterring the contemnor and others in the future from committing like contempt and denouncing the conduct concerned in an approximately emphatic way: Maniam at 314B (Kirby P). I have found above that some weight should be accorded to the need for specific deterrence as Mr Khoder was aware or ought to have been aware of the consequences of his breach of the 6 February 2024 orders. I am not satisfied that Mr Khoder’s comprehension of the 6 February 2024 orders was in any way relevantly impacted. Likewise, I have found that some weight should be accorded to the need for general deterrence.
In He v Sun at [40] Bell P (Gleeson and McCallum JJA agreeing) said as follows in relation to the suspension of a term of imprisonment
40. Part 55 r 13 of the Supreme Court Rules does not give any guidance as to the criteria for the suspension of a term of imprisonment. This has been described as a “common failure”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [79]. In Dinsdale, Kirby J observed at [80] that:
“[80] The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.” (footnote omitted).
His Honour expressed the view that the decision whether to suspend or not should be exercised by reference to all the circumstances of the case and not solely or largely by reference to the prospect of rehabilitation or contrition: at [84]. Typically, decisions to suspend sentences have been made subject to terms of good behaviour and undertakings to undergo rehabilitation: see, for example, Cumberland Council v Khoury [2017] NSWLEC 14, in which the respondent, who had been convicted on several charges of contempt for failure to obey Court orders, had his sentence of 10 months’ imprisonment suspended on the condition of good behaviour; see also Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495, in which the respondent, who had been convicted of contempt on account of his refusal to take an oath or affirmation and to give evidence, had his sentence of 12 months’ imprisonment suspended on the condition that he enter into a good behaviour bond for the same time.
And at [44] Bell P observed that in substance, a suspended sentence is a lesser punishment and, in the absence of any terms, a far lesser punishment than one of actual custody. There is nothing in the circumstances here which suggest that a lesser sentence in the form of a suspended fine is warranted.
Moreover, as Council submitted, Mr Khoder did not advance any conditions or explain how a good behaviour bond (with conditions) could be supervised by Corrective Services NSW in circumstances where a suspended term of imprisonment is not being imposed. It may be, as Mr Coffey submitted, that the ability in contempt matters to make an order requiring the contemnor to enter into a good behaviour bond to be supervised by Corrective Services NSW, outside the CSP Act, “is of particular importance to all NSW Superior Courts”. However, it is unclear to the Court by whom it was suggested further enquiries be made with Corrective Services NSW and/or the Crown Solicitor’s Office, to enable consideration of imposing a bond with conditions to be of good behaviour and supervision.
Likewise, I consider the alternative proposed by Mr Coffey – namely, that any fine be stayed or suspended on the condition that he enter into a bond for a specified period with conditions that he (a) is to be of good behaviour; (b) must not commit any offence; (c) must not engage, within the period of suspension, in any conduct which is found to be in contempt of Court – to be inadequate. It is true that in Maniam, the Court of Appeal held that although there was no express power to impose a condition that the contemnor perform community service as a condition of suspending a fine, the power to punish for contempt derives from the inherent power of the Court, and pursuant to that power and the power under r 13(3) of Part 55 of the SC Rules, the Court could impose a community service order: at 319A-D (Kirby P), 320G (Mahoney J), 321A (Hope AJA). However, here Mr Khoder made no submission as to how such a condition, if imposed, might be supervised.
Finally, as to the suggestion that the Court impose a fine but suspend it on terms that Mr Khoder undertake a minimum number of hours of voluntary service at an appropriate organisation, Mr Khoder made no submissions in relation to his capacity to undertake community service at an appropriate organisation or who would supervise his compliance with any such condition. In the case of Sundarjee, it was the contemnor, Mr Sundarjee, who submitted that if the Court determined to impose a fine, such punishment should be suspended on condition that he perform community service. He put before the Court evidence in the form of letters from various community organisations, including one letter from the Resourceful Australian Indian Network Inc in which he was offered 16 voluntary hours work per week (at [159]-[160]). Nixon J ordered a fine of $50,000 (order (2)), and suspended that fine "on the condition that [Mr Sundarjee] furnishes to the Registrar of the Equity Division, within 12 months of the date of this Order, proof that he has performed 100 hours of voluntary service for the Resourceful Australian Indian Network Inc." (order (3)). Here, Mr Khoder made no such submissions or provided any evidence in support of such an approach.
I am satisfied that the appropriate sentence for the contempt in this case is the imposition of a monetary penalty. [48]
At the hearing on 12 September 2024, Council’s counsel Mr White withdrew the submission that the appropriate sentence would be a $10,000 fine, and instead submitted that the appropriate sentence would a fine in the range of $1 to $10,000.
In supplementary written submissions, Mr Khoder submitted that a costs order may be a sufficient punishment and that in the event that adverse costs orders are imposed, the Court can also consider whether the effect of such costs orders themselves constitute a sufficient penalty against the contemnor. [49]
In determining the appropriate penalty for the contempt to which Mr Koder has pleaded guilty, I have had regard to the factors set out by Payne JA in Rollinson at [66]-[67], generally reflecting the factors identified by Dunford J in Wood at 185. I have also found helpful Robson J’s summary in Camilleri at [33]. I also have regard to the correct approach for a sentencing judge to take all relevant subjective and objective matters into account in a process described as “instinctive synthesis”: Markarian v The Queen [50] citing Wong v The Queen. [51]
In particular, I have had regard to the objective seriousness of the contempt, the conduct of Mr Khoder (over two days) which demonstrates a disregard of his obligation to comply with orders of the Court, that the conduct of Mr Khoder was wilful (albeit not contumacious), that he was aware or ought to have been aware of the consequences of his breach of the 6 February 2024 orders, that he has expressed some contrition and remorse, that there was no evidence of any previous offences, Mr Khoder’s personal circumstances including his capacity to pay, the need in the circumstances for both specific and general deterrence, and Mr Khoder’s agreement to pay Council’s costs of and incidental to the notice of motion filed on 12 February 2024 on an indemnity basis.
I have considered the table of cases said to be comparable by Council, summarised at [100]-[107] above. Whilst the task of the Court is to seek even-handedness in sentencing for contempt, each case ultimately turns on its own facts.
In the circumstances of this case, I find that the appropriate penalty would be a fine in the amount of $7,500.
I have found that Mr Khoder is entitled to a discount of 15% in light of the circumstances in which he entered a plea of guilty on 16 August 2024.
Accordingly, I will fix a fine in the amount of $6,375.
- It is clear that there are many circumstances where courts have awarded indemnity costs in relation to matters involving contempt (for example, Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 (Sheppard J) at 233-234). Although it is true that indemnity costs are commonly awarded in civil contempt cases – primarily as an important sanction to mark the Court's condemnation of the breach of its orders, the question is always whether the particular facts or circumstances of a case warrant the making of an order for the payment of costs other than on a party and party basis.
- While I am also conscious that contempt proceedings serve a public interest with the effect that a person who successfully brings proceedings should not be left out of pocket, there is no rule or principle that successful contempt proceedings necessarily attract indemnity costs orders as this would be inconsistent with the exercise of the curial costs discretion.
The first respondent accepted that it is ordinary practice that an order be made for indemnity costs to a successful applicant in contempt proceedings unless there is some reason to depart from that position. [52] At the hearing on 12 September 2024, the parties handed up an agreed order for Mr Khoder to pay Council’s costs of and incidental to the notice of motion filed on 12 February 2024 on an indemnity basis; that is, costs in relation to the contempt proceedings and excluding costs incurred in relation to the substantive Class 4 proceedings.
I will make such an order.
The Court makes the following orders:
Pursuant to Part 55, Division 4, rule 13 of the Supreme Court Rules 1970 (NSW), Mr Ihab Walid Khoder is fined $6,375 for failure to comply with order 1 of the Court’s orders made on 6 February 2024 in proceedings 44746 of 2024.
Mr Ihab Walid Khoder to pay the fine in order 1 to the Registrar of the Land and Environment Court, who is to pay such fine to Wollondilly Shire Council (Council) pursuant to s 694(1) of the Local Government Act 1993 (NSW).
Mr Ihab Walid Khoder to pay on an indemnity basis Council’s costs of and incidental to Council’s notice of motion filed on 12 February 2024 seeking orders that Mr Khoder be found guilty of contempt.
The Court notes that order (3) does not include Council’s costs in relation to the substantive Class 4 proceedings commenced by Council on 5 February 2024 by way of summons.
**********
See Wollondilly Shire Council v Khoder [2024] NSWLEC 5 at [29] (Pritchard J).
Land and Environment Court Rules 2007 (NSW) (LEC Rules) r 6.3.
Witham v Holloway (1995) 183 CLR 525 (Witham v Holloway) at 543, 545 and 548 (McHugh J); [1995] HCA 3, cited in Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 (Perdikaris) at [43] (Preston CJ of LEC).
[2024] NSWLEC 56 at [31] (Robson J). See also Council of the City of Sydney v The Owners Strata Plan 18820 [2017] NSWLEC 81 (Owners Strata Plan 18820) at [41] (Robson J).
[2017] FCA 1084 at [73] (Perram J), cited in Camilleri at [27] (Robson J).
[2023] NSWLEC 141 at [21] (Pritchard J).
Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23] (Biscoe J); Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J); Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 (Ali Ahmed) at [12] (Robson J); Council of the City of Sydney v The Owners Strata Plan No 18820 [2017] NSWLEC 81 at [35] (Robson J); Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 (Balmain Rentals) at [36] (Robson J).
[2023] NSWLEC 71 at [37]-[41] (Pepper J).
(2013) 195 LGERA 14; [2013] NSWLEC 64 (Queanbeyan City Council v Sun (No 2)) at [17] (Biscoe J).
[2023] NSWSC 1390 (Payne JA).
(1996) 86 A Crim R 183 at 185 (Dunford J).
Palerang Council v Banfield (No 2) [2012] NSWLEC 158 (Banfield (No 2)) at [86] (Pepper J).
Banfield (No 2) at [86] (Pepper J).
Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [20] (Pepper J) citing Witham v Holloway at 543, 545 and 548 (McHugh J).
[2022] NSWLEC 20 at [60]-[61] (Robson J).
Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 (Kelly (No 6)) at [16] (Biscoe J); Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [117] (Pepper J); Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88 at [32] (Biscoe J); Ali Ahmed at [31] (Robson J).
See Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149] (Kirby J). See also McHugh J at [85]: In Attorney-General v Leveller Magazine, Lord Diplock pointed out: "My Lords, although criminal contempts of court [may] take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it."
Balmain Rentals at [61] (Robson J).
Kelly (No 6) at [17] (Biscoe J); Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [27] (Pain J).
[2022] NSWLEC 80 (Pepper J).
[2019] NSWLEC 40 (Moore J).
[2003] NSWLEC 120 (Pearlman J).
(2013) 195 LGERA 383; [2013] NSWLEC 41 (Pain J).
[2008] NSWLEC 316 (Sheahan J).
[2008] NSWLEC 317 (Sheahan J).
Burwood Council v Ruan [2008] NSWLEC 167 at [26]-[28] (Biscoe J); Queanbeyan City Council v Sun (No 2) at [38]-[41] (Biscoe J).
Ali Ahmed at [44] (Robson J); Balmain Rentals at [67]-[68] (Robson J); Saker (No 4) at [106]-[107] (Pepper J).
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] (Spigelman CJ) (Wood CJ of CL, Foster AJA, Grove and James JJ agreeing); Tirnova at [164] (Moore J).
Ali Ahmed at [45] (Robson J); Owners Strata Plan 18820 at [65] (Robson J).
(2006) 94 SASR 505; [2006] SASC 152 at [29]-[31] (Doyle CJ) cited in Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [122] (Robson J); Hawksbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55 at [190] (Sheahan J).
[2014] NSWCCA 178 at [15]-[17] (Rothman H) (Hoeben CJ at CL and Beech-Jones J agreeing) cited in Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [123] (Robson J); Hawksbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55 at [190] (Sheahan J).
(2018) 235 LGERA 114; [2018] NSWLEC 80 at [267] (Preston CJ of LEC) cited in Environment Protection Authority v Hughes [2024] NSWLEC 91 at [155] (Pepper J); Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 at [123] (Preston CJ of LEC); Environment Protection Authority v Nath [2024] NSWLEC 10 at [128] (Pepper J).
[2019] NSWCCA 36 at [93]-[95].
In Owners Strata Plan 18820 at [46], Robson J considered the CSP Act to provide both guidelines and a framework to the Court when considering civil contempt.
(1992) 26 NSWLR 309.
(2021) 104 NSWLR 51; (2021) 292 A Crim R 38; [2021] NSWCA 95.
(2017) 222 LGERA 78; [2017] NSWLEC 14 (Moore J).
[2013] NSWSC 924 at [77] (Garling J).
[2017] NSWSC 495 (Bellew J).
(2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58] (Basten JA) (Meagher JA agreeing at [139]).
[2022] NSWSC 97 (Bell P).
[2022] NSWSC 407 at [87] (Beech-Jones CJ at CL).
[2023] NSWSC 1275 (Yehia J).
Judicial Commission of New South Wales, “Community correction orders” in Sentencing Bench Book (March 2022) at [4-400].
[2018] NSWSC 35 (Ward CJ in Eq).
[2022] NSWSC 97 at [96] and [106] (Bell P).
[2024] NSWSC 237.
Queanbeyan City Council v Sun (No 2) (Biscoe J); Banfield (No 2) (Pepper J); Saker (No 4) (Pepper J); Bayside Council v Zein [2023] NSWLEC 42 (Pain J).
Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee [2024] NSWSC 237 at [91] (Nixon J); Circuit Finance Australia (recs and mgrs apptd) (in liq) v Sobbi [2010] NSWSC 912 at [8] (Ball J).
(2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
(2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] (Gauron, Gummonw and Hayne JJ), and [50]-[74] (McHugh J). See Green (a pseudonym) v R [2025] NSWCCA 16 (Adamson, Ball JJA and Fagan J).
Pittwater Council v Martoriati [2013] NSWLEC 84 at [26]-[27] (Preston CJ of LEC); Blacktown City Council v Pearce [2013] NSWLEC 175 at [21]-[22] (Preston CJ of LEC); Nitopi at [220] (Moore J); Fairfield City Council v Camilleri [2019] NSWLEC 95 at [165] (Sheahan J); Tate v Duncan-Strelec [2020] NSWSC 52 at [31] (Kunc J); Perdikaris at [75]-[77] (Preston CJ of LEC); Gabriel Saker (No 4) at [119] and [121] (Pepper J).
Wollondilly Shire Council
Khoder
(2014) 253 CLR 58
(2017) 222 LGERA 78
(2006) 94 SASR 505
(2018) 99 NSWLR 229
(2018) 235 LGERA 114
(2013) 195 LGERA 383
(2021) 104 NSWLR 51
(2005) 228 CLR 357
(1999) 198 CLR 435
(2013) 195 LGERA 14
(2000) 49 NSWLR 383
(1992) 26 NSWLR 309
(1995) 183 CLR 525
(2001) 207 CLR 584
(2000) 202 CLR 321
(1993) 46 FCR 225