Land and Environment Court of New South Wales CITATION : Blacktown City Council v Butler & Anor [2008] NSWLEC 295 APPLICANT Blacktown City Council PARTIES : FIRST RESPONDENT Warwick Kevin Butler SECOND RESPONDENT Top Cut Tree Services Pty Ltd FILE NUMBER(S) : 40501 of 2007 CORAM: Sheahan J KEY ISSUES: Contempt :- breach of undertakings - purged in part - costs LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Burwood Council v Ruan [2008] NSWLEC 167 Holroyd City Council v Eksiklioglu [2008] NSWLEC 42 Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136 CASES CITED: Owners Strata Plan 37762 v Pham & Ors (No.2) [2007] NSWLEC 306 Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 Registrar of the Court of Appeal v Maniam (No.2) (1992) 26 NSWLR 309 Wood v Staunton (No.5) (1996) 86 A Crim R 183 DATES OF HEARING: 20 October 2008 EX TEMPORE JUDGMENT DATE : 20 October 2008 APPLICANT Mr T O'Connor, solicitor of LEGAL REPRESENTATIVES: Houston Dearn O'Connor RESPONDENTS Mr Butler in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Justice Sheahan 20 October 2008 40501 of 2007 Blacktown City Council v Butler & Anor EXTEMPORE JUDGMENT 1 His Honour: The Defendants – Mr Butler and the company of which he is the sole director – have pleaded guilty to contempt and appear today for sentence. 2 The substantive proceedings were commenced in May 2007 and concern the alleged use of premises at Shanes Park for a landscape supply business and for storage of vehicles, equipment, firewood and mulch without a consent, and/or the development and use of a Rural Shed in breach of the conditions of a consent. 3 On 10 August 2007 Talbot J made consent orders in the proceedings on the basis of a detailed undertaking given by the Defendants on 9 August 2007 (Exhibit C2). 4 In March 2008 the Council brought these contempt proceedings on the basis of claimed breaches of the elements of that August 2007 undertaking. 5 On 4 April 2008 the Defendants entered a plea of guilty to one element of the charge, and not guilty to the others. 6 The hearing of all charges was set down before me for 22-23 September, and voluminous evidence was filed on both sides. 7 When the matter came on for hearing on 22 September the Defendants were represented by counsel, and pleaded guilty to four elements of the charge. Agreement was reached on a Statement of Agreed Facts (Exhibit C1), and the matter was adjourned to today to enable the Defendants to purge their contempt. By consent, and with leave, the prosecuting Council amended its Notice of Motion and Statement of Charge, and elected to not proceed with other elements of the original Statement of Charge, and the Defendants gave a replacement undertaking. 8 The Defendants had instructed solicitors to act for them in the substantive proceedings, and new solicitors were appointed for the contempt proceedings. As I have already noted, the Defendants were represented by Counsel on 22 September, but those latter solicitors informed the Court last Friday that they were no longer instructed in the matter. Mr Butler appeared for himself and his company today. 9 In terms of the charges, both undertakings concerned, in particular, the storage of firewood and the parking or storage of vehicles on the subject property, in the period between 10 November 2007 and 26 February 2008, in breach of the original undertaking, and the removal of an unauthorised mezzanine structure within the rural shed by 9 February 2008, in the absence of a building certificate or development consent being obtained. The charges to which pleas were entered and accepted concerned continued parking of business vehicles in the shed or on the land, failure to remove the firewood, and failure to remove the mezzanine. 10 The Council accepts that the firewood has now been removed, and that business vehicles currently comply with the undertaking regarding parking. The Defendants have sought Council's consent for the mezzanine to remain, but neither has consent been granted, nor the mezzanine been removed. 11 In respect of the charge period, Mr Butler contends that he misunderstood what precisely was encompassed by the vehicle undertaking, and that he thought the firewood could remain on site if he sold it to his residential tenant on the property for domestic use. Mr Butler vacated the house at about the time of the original undertaking, and he now lives some 10 minutes drive away. He sought an engineering certification for the mezzanine, but did not pursue that with much, if any, vigour. 12 He agreed today to give oral evidence and he submitted to cross-examination. He appeared to me to answer some quite searching questions honestly, but, as so often happens in cases like this, he seemed to me to take a little too lightly the obligations on himself and his company under the planning and environmental laws of the State, and the ramifications of Class 4 proceedings, and of breaching undertakings entered to make those proceedings "go away". When the time came for submissions he adhered to his exculpatory version of events, but I am satisfied that he was well aware of the seriousness of the current contempt proceedings, the likelihood of a substantial fine, and the certainty of a costs order. 13 I am not satisfied beyond reasonable doubt that he set out to defy the Council, the law, or the Court, but he and his company must pay some penalty for taking so lightly what their undertakings required of them, and not pursuing more conscientiously those tasks which would satisfy those undertakings. They control the site and the business and are obliged to honour their undertakings. Apart from punishing these Defendants, the Court needs to send a deterring message to the general public that orders and undertakings must be strictly observed. 14 The principles of sentencing for contempt are well established. Mr O'Connor has referred the Court to Registrar of the Court of Appeal v Maniam (No.2) (1992) 26 NSWLR 309 per Kirby P, Owners Strata Plan 37762 v Pham & Ors (No.2) [2007] NSWLEC 306 per Pain J, and Burwood Council v Ruan [2008] NSWLEC 167 per Biscoe J, and to various other cases referred to in those decisions, notably Wood v Staunton (No.5) (1996) 86 A Crim R 183 per Dunford J. 15 For my part I surveyed the relevant recent authorities extensively in my judgments in Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136 and Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147, in both of which cases I imposed substantial penalties. 16 I adopt my observations in those cases again in this. 17 What people like Mr Butler have to understand is that a contempt will be found to be "wilful" if the conduct is "deliberate", even without any "specific intent to defy judicial authority". See Parramatta City Council v Roy D R Services Pty Ltd and Ors [2005] NSWLEC 756. 18 Something more than a token fine plus an order for costs is required here, even though I have decided, after very careful thought, to extend some degree of leniency to these defendants, albeit in the absence of any evidence as to their means. C.f. my judgment in Holroyd City Council v Eksiklioglu [2008] NSWLEC 42. I should make it clear to Mr Butler that leniency is rare in cases of contempt and will only be extended once, if at all. 19 I agree with Mr O'Connor that many (perhaps seven) of Dunford J's ten relevant considerations are in play here, and I have had regard also to the sentencing considerations in s.21A of the Crimes (Sentencing Procedure) Act 1999. There are no aggravating factors and very few, if any, mitigating factors present from among those in the section, and I have had regard to the specific elements of the Defendants' conduct listed in par 25 of Mr O'Connor's written submissions. 20 There is no evidence of bad character, and no real evidence of financial advantage having been gained from the contempts. Compliance would, however, have cost the Defendants some money, time and effort, and they should have committed to those. 21 Beyond the pleas of guilty there is no real expression of remorse or contrition, but I accept that Mr Butler in appearing for himself has not feigned any contrition. Nor has he shied away from the allegations against him simply because his former lawyers may not have taken pains to impress on him what his undertaking really meant and required. Now he knows what they mean the Court will rely on him to honour them in future. 22 He is entitled to a discount of between 10% and 25% for his guilty plea. He explains the lateness of most of it on the basis of not seeing at the outset of the contempt proceedings how he was in breach of some of the elements of the undertaking. I am prepared to apply a discount of 20%. 23 As submitted by Mr O'Connor it is appropriate to aggregate the breaches into one offence by each Defendant. Both are equally culpable. The appropriate range is, as Mr O'Connor submits, $7,500-$25,000, but these contempts are in the lower third of the scale of seriousness. 24 I have determined that each Defendant should be fined $10,000 less the 20% discount, namely $8,000. I considered making a costs order on an indemnity basis, but the contempt is not contumacious and there has been some (albeit belated) attempt to purge, and the usual party-party order is appropriate. The Defendants should be jointly and severally responsible for all the costs incurred to date in the Class 4 proceedings (including any costs earlier reserved), and in these contempt proceedings. 25 The Defendants are seeking to relax some elements of the September undertaking and will need to discuss that matter further with the Council. I will grant the parties liberty to apply in case some agreement is reached in that respect. 26 Exhibits C1 and C2 must remain in the Court file, but all other exhibits may be returned. 27 [Discussion as to some orders for costs being already in place]. 28 The orders of the Court are as follows: 1. Warwick Kevin Butler and his company Top Cut Tree Services Pty Ltd are both convicted of the charges of contempt in the amended statement of charge. 2. Each Defendant is fined $8,000. 3. The defendants are jointly and severally ordered to pay all the Prosecutor's costs of the contempt proceedings, on a party-party basis, as agreed, or as assessed according to law. 4. All exhibits other than Exhibit C1 and Exhibit C2 may be returned. 5. The parties are granted liberty to apply in the substantive proceedings on seven days notice. 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.