Land and Environment Court of New South Wales CITATION : Campbelltown City Council v Welsh [1988] NSWLEC 107 APPLICANT Campbelltown City Council PARTIES : RESPONDANT Michael John Welsh and M.J. Welsh Pty. Limited. FILE NUMBER(S) : 40223 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: Mudginberri Station v. AMIEU (1986) DATES OF HEARING: 05/02/1988 DATE OF JUDGMENT: 02/05/1988 APPLICANT Mr. Millar LEGAL REPRESENTATIVES: RESPONDENT Mr. Onisforou JUDGMENT: EXTEMPORARY JUDGMENT ON NOTICE OF MOTION HIS HONOUR: This is a Notice of Motion brought by the Council of the City of Campbelltown against the respondents Michael John Welsh and M.J. Welsh Pty. Limited. Mr. Onisforou has appeared for each respondent and Mr. Millar for the Council. The proceedings originated by application filed in November 1986 and relate to a recycling scrap metal plant facility at Blaxland Road, Campbelltown. A number of mandatory orders were sought in the original application by the Council, and on 19 March 1987 the Court, with the consent of the parties, made a number of orders. It is in respect of certain of these orders that the allegation of contempt arises. The orders made by the Court on 19 March last included certain positive work to be performed and carried out within 30 days of the orders and concerned a car park and landscaping within the subject premises. I am informed, and Mr. Millar says nothing to the contrary, that those orders, Nos. 3, 4 and 5 have been carried out by the respondents within the time specified. There were further orders made (Nos. 6, 7 and 8). Order 6 concerned a restraint on the respondents from storing goods and materials within the designated landscaped area. Order 7 concerned a restraint on the respondents from unloading goods and materials outside the boundaries of the property and order 8 concerned a restraint on the respondents from storing goods and materials between the building line and the street alignment on the said property. Compliance with these orders was suspended until 19 April 1987 and it is orders numbers 6 and 8 respectively which are now alleged to had been breached. The alleged breaches are set out in the Statement of Charge and are threefold. Firstly, that on 24 August l987 the respondents breached order 6, in that they stored or caused, suffered or permitted to be stored goods and materials within the designated landscaped are on lot 2l. Secondly, on 25 August 1987 the respondents, in breach of order 8, had stored or caused suffered or permitted to be stored bins and materials on lots 20 and 2l between the building line and the street alignment. Thirdly, on 4 November 1987, contrary to order 8, the respondents had stored, caused to be stored, suffered or permitted to be stored various materials including bins, timber and bales between the building line and the street alignments on lots 20 and 21. On behalf of the respondents Mr. Onisforou has indicated that the charges in the Statement of Charge and each of them are admitted. There is evidence before the Court of the breaches relied on by the Council. This is comprised in two affidavits by a town planner, Sally Lewis, which refer to the breaches claimed on three dates, 24 and 25 August and 4 November. The second affidavit is of another town planner with the Council, Mr. Brent Knowles, and also refers to the breach of 25 August. As well as the specific breaches, which are admitted and Mr. Onisforou declined to cross-examine the deponents, the affidavits also relate a conversation of 25 August between Mr. Lewis and Mr. Welsh, the firstnamed respondent, wherein it appears that the breach then observed had been continuing for some period of time prior thereto. In respect of one item for about three weeks, and in respect of timber, for a couple of weeks. Mr. Welsh indicated that it was impossible for him to comply with the requirement of keeping the car pa rking area clean. Attached to the affidavit of Miss Lewis are extensive photographs which are graphic of the breaches alleged and are also useful to the Court to get a better idea of the area of the development as well as the surrounding area. Before coming to the 'mitigation', if I may use that expression, advanced by Mr. Onisforou, I should repeat that the breaches by the respondents alleged in the Statement of Charge are admitted. I find the breaches in the Statement of Charge to have been proved beyond reasonable doubt, and I find on the evidence and material placed before me that the contempt has been wilful and deliberate and not merely casual, accidental or unintentional, in accordance with principles laid down by the High Court in Mudginberri Station v. AMIEU ((1986) 161 CLR 98). A number of matters are advanced on behalf of the respondents on the question of penalty. The respondent, Mr. Welsh, apparently first became involved in the business in 1979 taking over from his deceased brother, and it was not until 1982 that he actually acquired the business, together with his company, the second respondent. The business was then carried on at 5 and 7 Blaxland Road, but since that time (in 1985) has extended into number 3 Blaxland Road. It appears to be a thriving business, whilst not necessarily operating at a very large profit margin. Mr. Onisforou informs me that there are 25 employees and a turnover of $2 million gross. The zoning is industrial and it is submitted that the nearest dwelling is quite some distance away from the subject premises and that the surrounding development has a similar tone. The respondents have made efforts to enlarge their premises, and it is quite clear from the photographs that they do not have sufficient room on the subject premises to be able to convenientl y carry out their business activities. In November 1986 they acquired 15 Blaxland Road which is some three lots further along the road on the same side as the subject premises. A development application was lodged with the Council some time in 1987; it is not clear when. This has not been determined, nor has any appeal been lodged to the Court on the basis of a deemed refusal. If permission is eventually granted this allotment will offer some opportunity to the respondents to locate their business. The respondents have also sought to acquire or have acquired some vacant land appropriately zoned, so it is said by Mr. Onisforou, across the road from the premises. This transaction took place in December 1985. Unfortunately it is the subject of Equity proceedings for specific performance presently before the Supreme Court. Mr. Onisforou submits that until very recently his client (Mr. Welsh) did not understand or comprehend the full import of the orders of the Court and the breach of them as well as the proceedings for contempt. However, according to his Counsel, he is now very well aware of their import and will attempt to comply in the future, although this will result in inconvenience to his business. Some of the means by which he will attempt to comply and ensure that there are no further breaches have been outlined to the Court. It is difficult for me to say whether or not they are reasonable or practical, but at least the respondents are considering ways and means to see that there is no further breach of the orders made by the Court. Other means are said to be being taken by the respondents to expedite the obtaining of alternative land upon which some of the pressures on the subject land will hopefully be able to be alleviated. There are also matters of character which are relied upon. I am asked to accept, and I do, that the first respondent, Mr. Welsh, is a person of good character, a self-made man, and a substantial employer with a modest lifestyle. I take note of the references which have been tendered on his behalf. It may also be said to his credit that, when spoken to by Council officers, he appears to have readily admitted the breaches and, by his Counsel to-day, has frankly admitted the breaches by admission of the charges and by statements made on his behalf from the bar table. However, it still remains that the breaches of the orders of the Court are serious and appear to be continuing since the suspension of the orders was lifted on 19 April 1987. The breaches concern events on 24, 25 August and 4 November 1987, and the evidence reveals, and is not disputed, that some of the breaches had continued for some weeks prior to 25 August. There is also some updating evidence in the affidavit of Sally Lewis sworn on 8 January l9 88 of the continuing situation on the site. All in all, it is difficult to assess what is a proper penalty to impose. It seems to me appropriate to impose a penalty by way of fine and not any other form of penalty. The purpose of a penalty for contempt of orders of the Court is twofold. Firstly, it is to punish the wilful disobedience of the order of the Court. Secondly, and perhaps more importantly in this case, it is to coerce compliance in the future with the orders of the Court made last March. Whilst there are three separate incidents or breaches alleged in the statement of charge on three separate days concerning two of the orders made, it seems to me convenient, particularly in the circumstances which have unfolded and where each of the charges is admitted, to impose one composite penalty upon the Notice of Motion for contempt. In my opinion an appropriate penalty to impose in all of the circumstances and taking into account all of the material placed before me, including the material in mitigation, is the sum of $5,000. When I say $5,000 that is in toto. The respondents will each be fined the sum of $2,500. Mr Onisforou, the question arises of time to pay. I am willing to allow any reasonable time. What I can do is this, I can allow a certain time to pay, and if your client, on consideration, believes that he is unable to pay within that time, he can take out a Notice of Motion seeking to have the time extended. Each respondent is fined the sum of $2,500 to be paid to the Registrar of the Court within two (2) months of this day. The applicant Council's costs of the Notice of Motion for contempt are to be paid by the respondents. The exhibits may be returned. Associate 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.