Wollongong City Council v Kilpatrick & Anor

EXTEMPORE Judgment 1These contempt proceedings were first listed for hearing before Moore AJ on 8 November 2011. 2They concern orders made by Pepper J, by consent, on 7 April 2011 resolving class 4 proceedings brought by Council on 15 December 2010 in respect of use of certain lands at Unanderra "for the purpose of a waste management facility contrary to the Environmental Planning and Assessment Act 1979". 3Pepper J was satisfied that the court should make the agreed orders, and published her reasons: [2011] NSWLEC 61. Her Honour explained to the respondents the seriousness of any failure to comply with orders of the court (see [11]). 4The respondents failed to remove, as agreed, certain "waste", and "equipment", as defined in the orders, within the agreed timeframe, namely by 20 May and 6 June 2011. The Notice of Motion for contempt and the Statement of Charge were filed on 8 July 2011, against only the first respondent. 5When the parties came before Moore AJ they again agreed upon consent orders, the result of which was an extension of the date for compliance, and purging of contempt, to 1 January 2012, and adjournment of the contempt charge to 3 February 2012 for mention. Those consent orders were signed by both respondents, and counsel for the Council told the court today that His Honour reinforced to the respondents that non-compliance with the amended timetable would have serious consequences in the contempt proceedings. 6Both sets of consent orders included costs orders against the respondents in agreed amounts, with extensive time to pay the amount ordered on 8 November 2011. Payments under those orders have continued. 7The seriousness of the breach of the environment and planning legislation alleged in this matter, and of the failure to comply with the court's orders, is clearly described in the five affidavits of Council officer John Andrew Sharp, sworn between 17 February 2011 and 16 February 2012, and is clearly to be seen in all the photographs put before the court by the Council, the most recent taken last Friday 27 April 2012. 8Sharp's factual evidence in his first two affidavits was summarised by Pepper J (at [3]-[7]), and his opinion on environmental impact was set out by Her Honour (at [8]). His fourth affidavit was placed before Moore AJ, and included photographs taken on 3 November 2011. His third and fifth affidavits were read today. The fifth affidavit was sworn on 16 February 2012, as noted above, and included a series of photographs taken on 3 January 2012. 9In his oral evidence before me today, Leslie Kilpatrick takes issue with some details in Sharp's evidence, but not really with its import. The court would have been assisted if the Kilpatricks had put on evidence, particularly in regard to their group/family operations, in accordance with the directions given by Craig J on 3 February and 9 March 2012. 10The family appears to have responsibility for a range of business operations, many of which have taken advantage of the availability of the subject site. 11"Some", but not "significant" compliance with the court's orders was evident in the photographs taken on 3 November 2011, and placed before Moore AJ. Likewise, "some" improvement, but far from enough, was evident in the photographs taken on 3 January 2012, two days after Moore AJ's deadline. 12I am satisfied that the respondents failed to comply with the court's orders. 13The second respondent has not appeared today, but the first respondent was accompanied by their youngest son, Paul. 14Leslie Kilpatrick testified today to having a major working bee at the subject site on Tuesday-Thursday of last week, 24 to 26 April, and then Saturday-Monday, 28-30 April. 15Council took another series of photographs on Friday 27 April (Exhibit C1), and, in fairness, it must be observed that substantial clean-up is evident. Mr Kilpatrick agreed to the tender of those photographs and gave sworn evidence about what has been done since they were taken. Paul Kilpatrick produced to Council and the court a series of photographs he said were taken yesterday. 16I adjourned the hearing for an extended lunch break, to enable: (1) Council to inspect the site to verify the first respondent's evidence, and (2)the first respondent and his son to ensure that the further clean-up activities they expected to occur on-site today had, in fact, occurred. 17At 2.30pm the parties agreed that there remained on site three excavators, two trucks, and a shipping container. One of the excavators is hopefully to be sold soon to a neighbour. Leslie Kilpatrick confirmed his older son's advice to the Council inspector today that the other items would all be gone "by tomorrow". 18Contempt proceedings have the dual purposes of remedying the impact of a breach of the law, and punishing those who disobey orders of the court. 19No fewer than four clean-up notices were issued by Council between the first complaint in September 2009, and the commencement of the class 4 proceedings on 15 December 2010. 20Now three hearings, including two on contempt, have proven necessary to get an appropriate environmental response from the Kilpatricks, at the very moment when a sentence was about to be passed for contempt of court. 21The impact aspect of the case is almost totally resolved, but the disobedience aspect remains to be discussed. 22The explanations proffered to the court are (1) that the economic downturn, and the need to vacate another site, made it necessary to use the subject land in this way, (2) that that downturn made it more difficult to afford remedial works, (3) that poor weather after the making of orders on 7 April 2011 restricted access to the site, and (4) that the family's response to the situation, including the court's orders, was further complicated by sudden and serious health issues faced by the first respondent. 23Leslie Kilpatrick collapsed suddenly on 9 June 2011, which the court notes is after the later of Pepper J's two deadlines, and underwent emergency surgery for a burst aneurysm on/in his aorta. The court has been provided informally with medical evidence, primarily from his surgeon, Dr Arthur Stanton. Clearly the first respondent, a man of 68, was lucky to recover as well as he has. Paul told the court in his affidavit filed in court today (and verified by his giving sworn oral evidence) that his father has, since the emergency, "somewhat retired". His remaining aneurisms will continue to require ongoing monitoring. However, as Dr Berveling observed, the first respondent's health problems did not stop him agreeing to consent orders before Moore AJ. 24One further complication the Kilpatricks encountered was that the Supreme Court apparently made some orders, in late October 2011, requiring trucks to be taken off a roadway which had become a right of way, and the Kilpatricks say they had little choice but to park them on the subject land, where Sharp saw them in November 2011. Also, Leslie Kilpatrick said that he allowed some short term tipping, the beneficiary of which did not return to remove it. 25The first respondent admits ownership of the site since late 2008, and responsibility for its unapproved use in the manner complained of by Council - storage of plant, equipment, and what he called in the witness box, "rubbish". He admits to what can only be described as very tardy compliance with the orders of the court - orders made on two occasions, with his and his wife's consent. As he said, he could have managed the matter better. He knew he needed consent and he failed to obtain it. Illegal use of the land provided the respondents with a commercial advantage. 26By 8 September 2009 Council had received a complaint. It has been very lenient with extensions of time, etc. in all the circumstances. At least twice it sought discussions with the respondents, but received no response until the proceedings were commenced. It cannot be criticised for now taking a harder line. 27Counsel for the council referred me to the contempt cases of Hunters Hill Council v Hakim ("Hakim") [2010] NSWLEC 62, and Mosman Municipal Council v Kelly (No 6) ("Kelly") [2010] NSWLEC 20. 28In Kelly, Biscoe J gave an excellent summary of the appropriate principles to apply (see p[6]-[9]), and, as I did in Hakim and other cases, I apply them today. 29In Hakim, the orders breached had been made by consent, the only compliance was partial, and the response to the court's orders lacked "alacrity or haste". In Hakim, as in this matter, the evidence suggested that the respondents took advantage of a tolerant or generous attitude on Council's part. 30I said there, and I say again in this case, that compliance with the law, with Council directions, and certainly with orders of the court, is not "optional". "Scrupulous obedience" is required to protect the integrity of the system. In Hakim, there was no harm to the environment, but in this case there has been significant harm since at least September 2009. 31The respondents in this matter were not charged with any offence, and eventually agreed to remedy the situation. They then allowed the harm to continue, virtually unabated for a further 12 months after Pepper J's orders. Only one respondent now appears, to be dealt with by the court, but I realise that the burden of the outcome I am about to announce will fall also on the second respondent and the rest of their family. 32On all the tests outlined in Kelly, a very serious fine is called for in this matter, but, in all the circumstances, especially the respondents' unproven but fairly obvious financial difficulties, I am prepared, like Biscoe J in Kelly, to reduce the fine which I would normally be expected to impose. 33The respondents remain jointly and severally responsible to pay the Council's costs as earlier ordered, and the first respondent must now pay Council's costs incurred since 8 November 2011 on an indemnity basis. 34I now pronounce the following orders of the court: 1.The First Named Defendant Leslie Kilpatrick is convicted of contempt of Court as charged in the Statement of Charge dated 8 July 2011. 2.The First Named Defendant Leslie Kilpatrick is fined $35,000. 3.The First Named Defendant Leslie Kilpatrick is ordered to pay a daily penalty of $2,000 per day. 4.Order 3 is suspended until 4pm Friday 4 May in respect of all remaining items on the land, except the 30 tonne Kato 1220 excavator, in respect of which Order 3 is suspended until 4pm Friday 8 June 2012. 5.The First Named Defendant Leslie Kilpatrick is ordered to pay the applicant Council's costs incurred since 8 November 2011 on an indemnity basis, within 28 days of agreement or assessment. 35The photographs in Exhibit C1 are to remain on the court file. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2012