Land and Environment Court of New South Wales CITATION : Jamie Darren Lonsdale & Anor v Gilbert & (2) Ors [2007] NSWLEC 36 APPLICANTS: Jamie Darren Lonsdale and Trudy Lonsdale FIRST RESPONDENT: Paul David Gilbert PARTIES : SECOND RESPONDENTS: Barry Albert Ellston and Judith Ann Ellston THIRD RESPONDENT: Peter Joseph Moroney FILE NUMBER(S) : 30860 of 2004 CORAM: Lloyd J Practice and Procedure :- contravention of court order - failure to serve original order – charge of contempt – requirements of personal service and penal endorsement -– discretion to dispense with the requirements – relevant considerations – evidence of knowledge of the terms of order – evidence of prior attempts to comply KEY ISSUES: Contempt – contravention of court order – charge of contempt – opportunity given to purge contempt LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 6 Supreme Court Rules 1970 Pt 42 r 6 and r 8 Bailey v Marinoff (1971) 125 CLR 529; Clifford v Middleton (1974) VR 737; DJL v Central Authority (2000) 201 CLR 226; Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655; Fullerton v Gardiner (NSWSC, Powell J, 31 October 1978, unreported),; CASES CITED: J & T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30; McGirr v Xenos (2006) 144 LGERA 172; Miller v Eurovox Pty Ltd [2004] VSCA 211; Primelife Corp Ltd v Newpark Pty Ltd [2003] VSC 106; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Von Doussa v Owens (No. 2) (1982) 30 SASR 391 DATES OF HEARING: 01/12/2006 DATE OF JUDGMENT: 1 February 2007 APPLICANTS: A Crossland (barrister) SOLICITORS: Turnbill Hill Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT P Sladen (agent) SOLICITORS: N/A SECOND AND THIRD RESPONDENTS: N/A JUDGMENT: - 14 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 1 February 2007 LEC No. 30860 of 2004 LONSDALE & ANOR v GILBERT & (2) ORS [2007] NSWLEC 36 JUDGMENT Introduction 1 HIS HONOUR: On 30 January 2006, Bignold J delivered a judgment in proceedings brought by Jamie Darren Lonsdale and Trudy Lonsdale, the applicants, for relief under the Encroachment of Buildings Act 1922. The orders made by his Honour included the following orders against the first respondent, Mr Paul David Gilbert: …. 2. The first Respondent, as encroaching owner under the Encroachment of Buildings Act 1922 , remove from the Applicants' land being lot 39 in Deposited Plan 879395 and known as 7 Matelot Place, Belmont the encroachments comprising a timber retaining wall and colorbond fence erected on top of that wall emanating from the first Respondent's property, being lot 103 in Deposited Plan 1062309 and known as No 8 Sabot Close, Belmont. …. 4. The works referred to in Orders 2 and 3 be carried out within 60 days (or such further period as the parties may agree in writing). 2 This matter has come before me for the determination of an amended notice of motion for contempt brought by the prosecutors, who were the applicants in the proceedings determined by Bignold J. The amended notice of motion is brought against Mr Gilbert, now the defendant. The prosecutors seek an order that Mr Gilbert be punished for contempt according to the law, charging him with refusal to comply with Order No. 2 made by the Court within the time specified in Order No. 4. Mr Gilbert, represented by an unqualified agent, concedes that he has not to date complied with Order No. 2 within the time specified in Order No. 4, but argues that the motion for contempt should be set aside as he was never served with a properly endorsed minute of the orders. 3 Part 42 of the Supreme Court Rules 1970 ("SC Rules") deals with the enforcement of judgments and orders and applies in this Court: see Pt 6, r 1(1) of the Land and Environment Court Rules 1996 ("LEC Rules"). Rule 6 of Pt 42 relevantly provides: (1) This rule applies: (a) where - (i) a judgment requires a person to do an act within a time specified in the judgment, and (ii) he refuses or neglects to do the act within that time or, if that time has been extended or abridged under Part 2 rule 3, within that time as so extended or abridged, ... (2) In a case in which this rule applies, a judgment may, subject to rule 8, be enforced by one or more of the following means: (a) committal of the person bound, (b) sequestration of the property of the person bound, ... (Cf Uniform Civil Procedure Rules 2005 (" UCP Rules" ), Pt 40, r 6) 4 Mr Gilbert resists the making of such an order under Pt 42, rr 8(1) and (2) of the SC Rules on the ground that the defendant's barrister (but not Mr Gilbert himself) was present in court when the orders of Bignold J were pronounced and there was no personal service on the defendant of a minute of the orders. Further, as there was no service of a minute of the orders, there was also no notice given to Mr Gilbert that disobedience of the orders could result in his imprisonment or sequestration. The prosecutors, however, seek the exercise of the Court's discretion under Pt 42, rr 8(6) and (7) to dispense with the requirements of service. Part 42, r 8 of the SC Rules relevantly provides: (1) Subject to the rules, a judgment shall not be enforced by committal or sequestration unless - (a) a minute of the judgment is served personally on the person bound, and (b) if the judgment requires the person bound to do an act within a specified time, the minute is so served before that time expires ... (3) A minute of a judgment served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if: (a) where the judgment requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time, ... (6) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment: (a) by being present when the judgment is directed to be entered or when the order is made, or (b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise, the judgment may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule. (7) The Court may dispense with service under this rule. (Cf UCP Rules , Pt 40, r 7) Background 5 As noted above, the original proceedings before the Court were an application for relief under s 3(2) of the Encroachment of Buildings Act 1922 brought by the applicants, adjacent owners, against the respondents, encroaching owners. The encroachment comprises, as I understand it, a retaining wall with a colorbond fence attached thereto. The total area of the encroachment is approximately nine square metres. Bignold J granted the relief sought by the applicants against each of the encroaching owners and further held that Mr Gilbert, acting through the agency of his builder, was solely responsible for the creation of the encroachments: J & T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30 at [60] The evidence 6 Mr A D Crossland, appearing for the prosecutors, relies upon an affidavit of Mr Evan Andrew Walker, a solicitor employed by Turnbull Hill Lawyers, solicitors for the prosecutors, sworn 12 October 2006. Annexed to the affidavit is some correspondence that passed between the parties. On 9 March 2006, the solicitors for the prosecutors wrote to Mr Gilbert regarding the judgment of Bignold J of 30 January 2006. The letter requests that the works ordered be completed within the required time frame and that if this did not occur they would bring a motion for contempt in which they would submit that Mr Gilbert should be committed to prison. On 15 March 2006 Mr Gilbert replied to the prosecutors' solicitors indicating that he would be commencing works on 20 March 2006. A further letter from Mr Gilbert to the prosecutors' solicitors, dated 16 March 2006, indicated that Mr Gilbert required access to the prosecutors' property to carry out the engineering work. On 26 April 2006 the solicitors for the prosecutors wrote to Mr Gilbert indicating that he had not yet complied with the Court's orders within the required time period. They say that as a result of this they would be bringing proceedings for contempt of court which could result in Mr Gilbert's imprisonment. 7 Mr Peter Sladen, the unqualified agent appearing for Mr Gilbert, relies upon an affidavit of Mr Gilbert, sworn 25 October 2006. Much of the affidavit bears no relevance to the notice of motion for contempt before me. However a number of annexures are relevant. Firstly, I note a letter from Mr Gilbert to Mr Peter Moroney (the third respondent in the original proceedings) dated 14 February 2006. The letter is a request that Mr Moroney remove and replace the encroaching wall. It refers to the orders made by the Court on 30 January 2006 and sets out the terms of Order No. 2, which I have quoted in par [1] above. In the letter Mr Gilbert indicates that if he received no communication from Mr Moroney within seven days he would order the work to be carried out himself with the costs payable by Mr Moroney. This indicates that Mr Gilbert was aware of the Court's orders made on 30 January 2006 and was attempting to take action to comply with them. 8 In a letter from Mr Gilbert to the solicitors representing Mr Moroney, dated 2 March 2006, a copy of the Court's orders made on 30 January 2006 were enclosed. A further letter of 10 March 2006 to Mr Moroney's solicitors indicates that Mr Gilbert had not heard from Mr Moroney regarding the carrying out of the ordered works. Mr Gilbert referred to the deadline ordered by Bignold J for the demolition of the wall being by the end of March. He stated that due to the deadline he was going to proceed with the works. A response from Mr Moroney's solicitors was received on 10 March 2006 requesting him to defer commencement of works to allow their client to further consider his position. On 15 March 2006 Mr Gilbert replied to Mr Moroney's solicitors indicating that works were proposed to commence on the property on 20 March 2006. It is unclear whether a response was received from Mr Moroney's solicitors but Mr Gilbert wrote to them again on 19 July 2006. Mr Gilbert's affidavit discloses that he appears to have had some problems retaining a contractor to perform the required works. In any case he apparently had not commenced works as he had intended to as the letter of 19 July 2006 requests that Mr Moroney immediately commence rectification works on the encroachment. On 15 August 2006, Mr Gilbert sent letters to 12 construction companies requesting a quote for the completion of the required work. On 23 August 2006, Mr Gilbert wrote to the prosecutors' solicitors in response to letters from them of 1 and 16 August 2006 regarding his non-compliance with the Court's orders. His letter indicates that he had not had a clear response to his engineering design to deal with the encroachment and was unsure whether the prosecutors and the second respondents in the original proceedings agreed with the proposal. Mr Gilbert's letter refers to a number of problems he had experienced in performing the ordered work but states that he may be in a position to commence the works soon. 9 There is also in evidence a letter dated 6 February 2006 from Mr Gilbert's solicitor to the prosecutors' solicitors, which referred to the judgment of Bignold J and states that their client is presently reviewing what is required to comply with the orders. 10 I am satisfied from all of the above evidence that Mr Gilbert had knowledge of the Court's orders. Firstly, Mr Gilbert was legally represented when the judgment of Bignold J was delivered. Secondly, all of the correspondence to which I have referred demonstrates that Mr Gilbert was personally aware of the terms of the Court's orders. Thirdly, I am satisfied that Mr Gilbert was aware that if he did not comply with the Court's orders he could be prosecuted for contempt of court and that he could be sentenced to imprisonment for this. Finally, I am satisfied that Mr Gilbert did make some effort to comply with the orders but he has not yet done so. Failure to serve the orders 11 There are a number of authorities which deal with the question of dispensing with the requirement of service of under Pt 42, r 8 of the SC Rules. 12 In McGirr v Xenos (2006) 144 LGERA 172 Bignold J considered a motion for contempt which was resisted by the defendant on the basis that there was no personal service of a minute of the Court's orders and in particular there was no service of a minute bearing the penalty notice prescribed by Pt 42 r 8 (3). In that case the prosecutor sought to rely upon Pt 42 r 8(6) contending that the defendant had been in court when the relevant orders were made, alternatively they argued that Pt 42 rr 8(1) and 8(3) do not prevent the enforcement of a judgment by the imposition of a fine. Bignold J rejected the first argument following the authorities cited by the defendant which all affirmed "...the necessity for strict observance of the rules and procedures applicable to proceedings for attachment and committal where the liberty of a person is placed in jeopardy" (at 183). Bignold J found that in the case before him there was nothing in the documentary materials or in the circumstances of the orders which remotely warned the defendant of the potential liability to imprisonment or sequestration if he refused or neglected to perform the required acts within the specified time. Bignold J followed the judgment of Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655 in holding the absence of penalty notice and lack of precise warnings to be crucial procedural deficiencies. He found that the prosecutor had not made out a case of special circumstances to justify the exercise of the discretion conferred by Pt 42 r 8(6) of the SC Rules. 13 In consideration of the prosecutor's second argument, Bignold J discussed the Victorian decisions of Primelife Corp Ltd v Newpark Pty Ltd [2003] VSC 106 and Miller v Eurovox Pty Ltd [2004] VSCA 211. Bignold J found that in the particular circumstances of the case, where the punishment for contempt held no coercive nature, as the required works had been generally completed to the general satisfaction of the prosecutor, the prosecutor's argument for the imposition of a fine for contempt must fail. His Honour, however, noted that there does, in some circumstances, exist a power of the Court to punish for civil contempt by way of imprisonment or a fine. His Honour noted that the circumstances of McGirr bore no relationship to those of Primelife or Eurovox. 14 Lewis was a case where an order had been obtained against defendants who were neither present in court nor represented in the proceedings. The council informed the defendants by letter of the order and the possible consequences if it was disobeyed. The consequences indicated were the bringing of proceedings for contempt of court and in one letter the defendants were informed that an application would be made for their attachment. 15 The defendants in that case did not comply with the order and the council brought a motion for contempt. It was not until the notice of motion was taken out that the defendants were served with a copy of the original orders. Holland J dismissed the motion for contempt on the basis that a correctly endorsed minute of the order had not been properly served. Holland J held that in the circumstances strict compliance with the procedural requirements was required, finding that the absence of a penalty notice and a lack of precise warnings of the risk of imprisonment were crucial procedural deficiencies. His Honour said (at 658): In my opinion, the power provided in 8(6) ought to be exercised sparingly. To commit a person to prison for disobedience of an order of the Court is a most serious matter and when the rules expressly require in mandatory terms personal service of the order in an official form showing on its face that it emanates from and is authenticated by the seal of the Court with an express statement indorsed thereon that disobedience is liable to lead to "imprisonment", it seems to me that, unless there are special circumstances justifying non-compliance with the requirements of the rules, they ought not to be disregarded by the Court. Holland J saw that a circumstance where r 8(6) could be applied was where the defendant sought to avoid service. 16 Mr Crossland submits that the present case can be distinguished from Lewis on two bases. Firstly, that there is an element of prejudice in the current case that did not exist in Lewis. Lewis dealt with the breach of a restraining order and thus there would have been, in the circumstances, an opportunity to properly serve the defendants with an order prior to bringing the motion. In the present case, however, as the original order had a compliance period of 60 days, once that time period had expired it was not possible for the prosecutors to then serve the orders in a fashion that could found a motion for contempt. Mr Crossland submits that the prosecutors should not be prejudiced for this, since if they are, there may be no basis upon which they are able now to enforce the Court's orders. Secondly, in Lewis the defendants did not appear nor were they represented. 17 Clifford v Middleton (1974) VR 737, a decision of the Supreme Court of Victoria, was discussed in detail in McGirr, with Bignold J pointing out that the decision of Kaye J in Middleton has been consistently followed in later Victorian decisions. In Middleton a motion for contempt was not allowed to proceed as the defendant had not be served with a duly endorsed copy of the order although there was evidence that the order had come to the defendant's notice. Kaye J held that: Attachment proceedings are of a criminal character and the utmost strictness in procedure and proof is required. Personal service of the order in question is necessary to found proceedings in attachment. ... The power to relieve a party from the consequences of non-compliance with the Rules where the liberty of the subject is in jeopardy should not be exercised unless the evidence shows that the requirements of and purpose for the particular rule have been fulfilled in a manner otherwise that in the form provided . 18 Mr Crossland seeks to distinguish this case due to the different factual circumstances – in Middleton the defendant was not represented at the time of making the orders and there was no evidence at all that the defendant had even been made aware of the orders. 19 Two later Victorian cases which followed the decision of Middleton are Primelife and Eurovox Pty Ltd [2004] VSCA 211. Primelife dealt with an application for a defendant to be punished for contempt of court. In that case, attempted service of an order had been made upon the defendant without the appropriate endorsement to warn the defendant of the consequences of disobedience. Despite evidence which pointed to attempted evasion of service on the part of the defendant, Nettle J did not dispense with the requirement for strict compliance with the rules. His Honour held that there could be no attachment proceedings without endorsement, regardless of whether or not the endorsement would have in actual fact been read. Nettle J found, however, that this did not exclude the potential to order another form of penalty. In the circumstances a fine was not necessary for coercion or compliance as that objective had already been achieved. In the absence of the need for compliance, Nettle J held that a fine ought only be imposed in the case of wilful contempt and for the objective of specific and general deterrence. Nettle J did not deem this to be appropriate in the circumstances. 20 In Eurovox an appeal was brought against a conviction for contempt of court on the basis that there was no endorsement on the Mareva and Anton Piller orders that were served. Again, there was evidence of evasion of service; however, despite the contumelious disregard which Vincent JA found the appellants to have treated the court's orders his Honour found that the requirement for endorsement could not be dispensed with. This was because it could not be proved beyond reasonable doubt that the appellants possessed any knowledge or understanding of the consequences that could follow the breach of a Mareva Order. As in Primelife, Vincent JA found that the absence of the required endorsement did not remove the power of the court to impose a fine. 21 The prosecutors in the case before me now rely upon the same cases as those argued unsuccessfully by the prosecutor in McGirr. They contend that the judgments upon which Bignold J based his refusal to exercise the Court's discretion under Pt 42 r 8(6) in McGirr are distinguishable from this case. 22 Mr Crossland submits that the facts of the case before me are not materially different from those in Fullerton v Gardiner (NSWSC, Powell J, 31 October 1978, unreported), the only material difference being that in the present case Mr Gilbert's counsel or solicitor, as opposed to the defendant himself in Fullerton, were in court when the orders were made. In Fullerton Powell J said that "the discretion is one which will normally be exercised sparingly, and only if there are good grounds". Powell J went on to the exercise the discretion conferred by r 8(6): This, however, seems to be a case in which the discretion should be exercised, for it is clear that the plaintiff not only knew of, and consented to, the terms of the injunction presently under consideration, but was present in court when the formal orders were made. Further, it is clear, even if I accept his evidence in its entirety, that the plaintiff appreciated, at the very least, that if he assaulted the defendant he would be in breach of the injunction, that he appreciated that any attempt to remove the child from the defendant's care would be wrong, and, finally, that he appreciated that if he acted in defiance to the order of the court he would render himself liable to some form of penalty, which penalty, so he thought, would take the form of a fine or a bond to be of good behaviour. 23 In McGirr the defendant had also been in court when the relevant orders were made. Bignold J, however, did not follow the decision of Powell J. His Honour's reason for this being that there was no evidence in the proceedings that demonstrated the defendant had had any warning of his liability to imprisonment or sequestration if he refused or neglected to do the required acts within the times specified by the orders. 24 Mr Crossland also relies upon a decision of the Full Court of the Supreme Court of South Australia, Von Doussa v Owens (No. 2) (1982) 30 SASR 391 where equivalent requirements for service were dispensed with. In that decision an order was made requiring a witness to answer certain questions put to him in an investigation. The witness did not answer the questions and an application was made that the witness be committed for contempt of court. The order of the court had not been served on the witness personally as required by Order 67, r 1(1) of the Supreme Court Rules (South Australia), but a copy of the order had been served upon his solicitors, which did not bear the endorsement required by Order 41, r 7 of the Rules. The witness was found to be aware of the contents of the order and in the circumstances the Court dispensed with strict compliance with the rules and held him to be in contempt of court. 25 Mitchell J (Walters and Cox JJ concurring), went through a number of authorities dealing with the question of dispensing with strict compliance with the rules for service and endorsement. In the circumstances of the case her Honour felt there was no possible prejudice to the witness from the failure to serve him personally or the omission of the penal memorandum from the copy served upon his solicitors. Conclusion 26 I accept the prosecutors' submission that this is an appropriate case for the exercise of the court's discretion under Pt 42 rr 8(6) and (7) of the SC Rules. None of the reservations that Bignold J had in McGirr apply in this case. The circumstances of this case are distinguishable from those cases where the court has refused to exercise its discretion, as the defendant's legal representative was in court when the judgment was delivered, although he was not present himself. Moreover, as noted in par [8] above, there is sufficient evidence to prove beyond reasonable doubt that Mr Gilbert knew of the terms of orders very soon after it was made on 30 January 2006. In particular, Mr Gilbert's letter of 14 February 2006 clearly shows that he was aware of the terms of the orders. I also find that Mr Gilbert was appropriately warned of the potential consequences of his failure to comply with the order and as such imprisonment or attachment remain as possible punishment. 27 Mr Sladen submits that there can be no contempt in the present case because time has not begun to run since there has been no service of the order. He relies upon Pt 15 r 6 of the LEC Rules, which states: (1) An order which requires a person to do an act, other than the payment of money, must specify the time within which the person is required to do the act. (2) The time is to be 21 days after the date of service of a copy of the order on the person required to do the act, unless the Court otherwise orders. (3) The Court may, by a later order, require the person to do the act within another specified time. 28 In the present case, however, the Court otherwise ordered. Bignold J made an order that the works be carried out within sixty days, or "such further period as the parties may agree in writing". The time thus expired sixty days after 30 January 2006. The rule has no relevance in the present case. 29 Mr Sladen also sought to revisit or re-open the orders made by Bignold J. The orders made by Bignold J are, however, final orders and cannot be re-opened or revisited: Bailey v Marinoff (1971) 125 CLR 529; DJL v Central Authority (2000) 201 CLR 226. No appeal was brought against the judgment and orders of Bignold J. If the defendant wished to challenge his Honour findings and orders, the appropriate course was to appeal. I am not sitting on an appeal from the judgment and orders of Bignold J and I decline to go behind these orders. 30 Accordingly, I dispense with the requirements of service under Pt 42 r 8 of the SC Rules. 31 Mr Gilbert does not deny that he has not complied with the orders of the Court and is thus in contempt of court. A court will not, however, hear a defendant who is in contempt unless that person has cleared or purged his contempt. That much appears in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340, in which the following statements in the Encyclopaedia of the Laws of England, 2nd ed (1907) vol III at 504-505 were approved: "Where contempt has arisen from doing an act contrary to an injunction not to do it, the contempt is cleared by an apology to the Court and making reparation for the act improperly done and payment of costs". 32 The same principle applies where contempt has arisen from a failure to do an act ordered by the court to be done. 33 It is thus appropriate that I defer any question of punishment or penalty for a period of three months to afford Mr Gilbert the opportunity of purging or clearing his contempt by fully complying, in every respect, with the orders made against him by Bignold J. Orders 34 I make the following formal orders: (1) The requirements of service of the Court's orders under Part 42, rule 8 of the Supreme Court Rules 1970 are dispensed with. (2) I find beyond a reasonable doubt that the defendant, Paul David Gilbert, is in contempt of court for his failure to comply with Order No. 2 made by the Court on 30 January 2006 within 60 days of the making of order. (3) The motion for contempt is adjourned part-heard to 10:00 am on Wednesday, 2 May 2007 to afford Mr Gilbert the opportunity of purging or clearing his contempt by fully and completely complying with Order No. 2 made by the Court on 30 January 2006. (4) I reserve the question of punishment or penalty until the adjourned hearing. (5) I reserve the question of costs until the adjourned hearing. I hereby certify that the preceding 34 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 1 February 2007 ***************** 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.