Land and Environment Court New South Wales Medium Neutral Citation: Waverley Council -v- Tovir Investments Pty Limited & Rappaport [2012] NSWLEC 209 Hearing dates: 4 September 2012 Decision date: 10 September 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Adjournment application dismissed. Costs reserved. Catchwords: PRACTICE AND PROCEDURE - question concerning second respondent's fitness to plead to contempt charges not pressed - substituted oral application to adjourn contempt proceedings against both respondents for six months because of second respondent's psychological condition. Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Ltd; Alexander (No 2) [2011] NSWLEC 87 Eastman v The Queen [2000] HCA 29, 203 CLR 1 Kesavarajah v The Queen [1994] HCA 41, 181 CLR 230 Ngatayi v The Queen [1980] HCA 18, 147 CLR 1 R v Presser [1958] VR 45 Category: Procedural and other rulings Parties: Waverley Council (Applicant) Tovir Investments Pty Ltd (First Respondent) Michael Rappaport (Second Respondent) Representation: COUNSEL: Mr T Howard (Applicant) Mr I Wallach (Respondent) SOLICITORS: Sparke Helmore (Applicant) File Number(s): 40917/10 adn 40918/10 Judgment 1In each of these two proceedings relating to premises at, respectively, Waverley and Bondi, the applicant, Waverley Council, obtained orders from the Court in early 2011 restraining the respondents, Tovir Investments Pty Ltd and Michael Rappaport, from using or permitting the use of the premises for the purpose of backpackers' accommodation or a boarding house without first obtaining a lawful consent to do so under the Environmental Planning and Assessment Act 1979. 2In April 2012 the Council filed separate notices of motion in each of the proceedings against each respondent seeking orders that each respondent be found guilty of contempt of court and punished by fine for disobeying the 2011 orders from the time they took effect. The primary purpose of the contempt proceedings is to enforce the injunctions. 3It is alleged that the corporate respondent is the owner of the premises and an investment vehicle for its directors and shareholders Thomas Rappaport and Vivian Rappaport (the parents of Michael Rappaport), that it has derived income from the use of the premises for the said unlawful purposes, and that its directors and shareholders have been present from time to time on the premises when they have been used for those unlawful purposes and have participated in the management or assisted in the maintenance of the premises. It is alleged against Michael Rappaport that he has actively managed the premises and been involved in the promotion of the premises. 4The corporate respondent has pleaded not guilty to the contempt charges. An estimate has been given that the trial may take up to 10 days. Mr Michael Rappaport has not yet pleaded to the charges. 5On 5 July 2012 Mr Michael Rappaport filed a notice of motion that the Court give directions for the conduct of a hearing into his fitness to plead to the contempt charges and that both proceedings be stood over until his fitness to plead had been determined. On 13 July, the List Judge directed that the matters be listed for a hearing on the question of Mr Rappaport's fitness to plead. 6When that question came on for hearing before me on 5 September 2012, counsel for the respondents indicated that it was not pursued and instead orally sought orders that the contempt proceedings against both respondents be adjourned for six months until March 2013, that Mr Rappaport submit to a further medical assessment by his psychiatrist Dr George Jacobs, and that Dr Jacobs file and serve a report in February 2013 as to his fitness to stand trial. 7This change in direction was not notified to the Council by the respondents until the eve of the hearing of the inquiry into Mr Rappaport's fitness to plead. 8The reason for this change in direction was that, in light of reports by Mr Rappaport's psychiatrist and psychologist and the Council's psychologist, the legal advisers for Mr Rappaport concluded that the so-called "Presser principles" for determining whether a person is fit to plead and stand trial could not be satisfied. These are the principles in the seminal decision of R v Presser [1958] VR 45 at 48 per Smith J concerning the circumstances in which a defendant is fit to be tried without unfairness or injustice, as follows: He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. 9The Presser principles were approved in the High Court in Ngatayi v The Queen [1980] HCA 18, 147 CLR 1 at 8, Kesavarajah v The Queen [1994] HCA 41, 181 CLR 230 at 244 and Eastman v The Queen [2000] HCA 29, 203 CLR 1 at [58] and by other courts in cases surveyed in Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Ltd; Alexander (No 2) [2011] NSWLEC 87 per Pepper J. 10Notwithstanding his inability to satisfy the Presser principles, an adjournment of the proceedings for six months is now sought on the ground that Mr Rappaport is psychologically not in a fit condition to prepare for a hearing and undergo a hearing. 11The Council opposes the adjournment application. Alternatively, the Council submits that if a substantial adjournment is granted, it should be granted only to Mr Rappaport and not to the corporate respondent and should be on terms that Mr Rappaport also submits to a further medical assessment by a nominee of the Council. The respondents indicate that the latter term is acceptable. The Council also proposes that if a substantial adjournment is granted, it should be on condition that Mr Rappaport cease to manage the premises. Since the contempt charges have not yet been tried let alone proved, I do not think that condition would be appropriate. If a substantial adjournment were to be granted, I would only grant it to Mr Rappaport. I can see no sufficient reason to adjourn the proceedings against the corporate respondent which allegedly owns the subject premises, has shareholders and directors who do not include Mr Rappaport and has derived income from its unlawful use for well over a year in defiance of the 2011 injunctions. Apparently the Waverley premises are being renovated at the moment but the Council is concerned about ongoing use of the Bondi premises for backpacker accommodation allegedly in breach of the injunctions because the high season for such accommodation is approaching. It seeks to enforce the injunctions through the contempt proceedings and therefore is concerned about a lengthy adjournment of those proceedings. 12The Council submits, and I accept, that an "adjournment" of the proceedings for six months is in substance a stay of the proceedings for six months. The Council submits that where a respondent's psychological condition is the issue, such a stay can only be obtained under the Presser principles and that there is no middle ground such as the respondents advance. The possible range of circumstances pertaining to a party's mental ill-health is so large that I think it would be too inflexible to say that it must fit the Presser mould before a lengthy adjournment can ever be granted. Nevertheless, when the adjournment is of the entire proceedings for such a lengthy period as six months and the Presser principles are not satisfied, I think that the Court should proceed with particular caution in assessing whether the adjournment is justified. Reasons for caution in those circumstances include the Court's duty to facilitate the quick resolution of proceedings, consistently with justice; the potential for injustice to the other party; and in a case such as this, the public interest, if the Council's allegations are true, in bringing to an end through contempt proceedings an unlawful and remunerative use of residential premises without development consent over a long period of time in defiance of the Court's injunctions. 13The question as to Mr Rappaport's fitness to plead having been abandoned, I proceed on the basis that he is fit to plead. At the hearing of the adjournment application, his counsel indicated that he thought he could probably get instructions from Mr Rappaport as to a plea and I invited him to do so during the course of the hearing. However, nothing came of this. The decision whether to plead guilty or not guilty is likely, it seems to me, to have a substantial effect on the weight of his pre-hearing burden of preparation. EVIDENCE 14The expert evidence comprises reports by Mr Rappaport's consultant psychiatrist Dr George Jacobs, his consultant clinical psychologist Mr Sam Borenstein, and the Council's forensic psychologist Mr Tim Watson-Munro, as well as a joint report by all three. 15Dr Jacobs has been treating Mr Rappaport for a mood disorder since 2003 and has seen him regularly. In Dr Jacob's report of 7 June 2012 he wrote: (a)Recently, Mr Rappaport has had an ear infection, which has been difficult to treat, causing him significant pain. (b)That has exacerbated his mood resulting in agitation, difficulty concentrating and sleep disturbance. (c)He has been unable to spend any time preparing for a court case due to be heard the next day (apparently a reference to a directions hearing in these proceedings). (d)He would be disadvantaged if any proceedings commenced before his recovery from an operation and his current mood problems. (e)He is in distress awaiting the operation due to his constant ear pain, which has led to headaches. (f)In his opinion, Mr Rappaport will not fully recover until September 2012. 16In a further report soon thereafter dated 17 June 2012, Dr Jacobs reiterated much of what he had written in his first report and stated: (a)Mr Rappaport needed surgery to obtain relief from his recent severe pain and headaches due to an ear infection and the operation would take place on 24 July 2012. (b)His mood is bipolar, mixed episode, and treatment in this instance concerned the ear infection and pain. (c)Following the surgery in July, his recovery may take weeks. (d)He sees Dr Jacobs every one to two weeks for therapy. 17As to fitness to stand trial without unfairness or injustice, Dr Jacobs said in that report: (a)Mr Rappaport is able to understand the nature of the charges. (b)He is able to direct sufficient attention to the charges and the evidence to enable him to make an informed decision as to how to plead. (c)He is able to understand generally the nature of the proceedings. (d)He is able to follow the course of proceedings so as to understand what is going on in court in a general sense. (e)He is able to understand the substantial effect of any evidence given in support of the prosecution. (f)At this time, he is unable to make a defence or prepare any answer to the charges as he needs to be sufficiently settled to be able to work through the evidence and the meaning of the charges. 18As to Mr Rappaport's fitness to prepare for and participate in the hearing, Dr Jacobs said in that report: (a)At this time, he is not fit to give sufficient attention to prepare his defence and participate in a lengthy hearing. (b)His fitness for those things may be affected by the proposed treatment and recovery. (c)He should be fit to prepare his defence to the charges and participate in a lengthy hearing when the treatment has been successfully completed or the pain has decreased sufficiently to not affect his mood and his ability to concentrate on all matters. 19Mr Borenstein in a report dated 30 June 2012 said: (a)Mr Rappaport was well known to him and was previously assessed by him in late 2005. He has had declining mental health since his teens. (b)He was heavily involved in trading on the share market. In 2009, he managed five rental properties, but he said he was not able to manage one of them. He had developed a gambling problem. (c)He does not cope when subject to stress. His chronic ear infection adds to his stress load. He was booked in to have surgery for it on 23 July 2012. (d)His history is one of major depression (recurrent type), post traumatic stress disorder with dissociative features, anxiety and panic disorder. (e)He is able to understand the nature of the charges, he is able to plead to the charges and he has a general understanding of the nature of the proceedings. However, he would have great difficulty following the course of proceedings and understanding what is occurring in court in a general sense, due to his depression and anxiety, which is of significant and severe intensity. He has an understanding of court procedures and practices but his depression and anxiety would make it difficult for him to follow proceedings due to impaired concentration and memory. He would experience difficulties following complex arguments. He would have difficulties instructing counsel due to difficulties comprehending complex information and facts. His depression and anxiety leads to impaired concentration, impaired memory, procrastination, indecisiveness and impulsiveness, such that it would interfere with his ability to instruct counsel and follow complex court proceedings. He would have great difficulty maintaining attention/ concentration if he had to participate in a lengthy hearing. (f)He should participate in therapy over seven months, which should achieve positive results in four to six months. 20Mr Watson-Munro said in a report dated 6 August 2012: (a)Mr Rappaport is capable of giving instructions and understanding court procedures and is fit under the Presser principles. (b)He suffers from a significant anxiety disorder. If the matter proceeds, he would benefit from pre-trial desensitisation, regular breaks during the course of the proceedings and support. (c)There is no suggestion that he is out of touch with reality nor that he has suffered from a psychotic illness. (d)He is addicted to share market trading, as well as gambling when under psychological duress. (e)His anxiety disorder is his major condition with associated features of significant depression and low self esteem. (f)There is no indication of any major psychotic illness and he presented as well oriented in time, place and person. When motivated and focussed, he is quite capable of narrating his memories. He impressed as a co-operative and reliable historian. This would tend to contraindicate the view that he currently has an innate difficulty in understanding the nature of the charges against him and preparing a defence. (g)Although he is fit under the Presser principles, his anxiety disorder and related symptoms are impacting upon his concentration with this dynamic escalating as his court date approaches. However, this is very common for individuals facing legal proceedings in the courts. (h)He requires considerable supportive psychotherapy, systematic desensitisation and support when in the witness box and instructing counsel. This may extend the process but does not contraindicate the proceedings continuing. (i)Dr Jacobs has raised the possibility of bipolar illness. Whilst he is highly agitated, it does not appear that he has experienced the more extreme forms of bipolar affective disorder. In this regard he has not been hospitalised at any point during his long association with Dr Jacobs nor has he been prescribed any psychotropic medication. (j)With appropriate structure, treatment and support he should be able to manage his upcoming court case. 21The joint report of Dr Jacobs, Mr Borenstein and Mr Watson-Munro is dated 29 August 2012 and states: (a)There was considerable consensus in relation to his anxiety disorder. (b)Dr Jacobs and Mr Borenstein believed that, say, over the next six months, if he "is given some respite from these proceedings he may be able to attend to the issues which have caused concern to the Council". I interpolate that the "issues which have caused concern to the Council" would appear to be the alleged disobedience to the injunctions over a period of more than a year. Why he has not attended to that by now is not explained in the medical evidence. (c)Dr Jacobs and Mr Borenstein were of the view that there would be an impact on his capacity to effectively instruct counsel, follow proceedings and deal with defence matters. (d)There was consensus that he suffered a mental illness, which will interfere with his ability to attend a lengthy trial. (e)Mr Watson-Munro said that many individuals facing litigation or criminal proceedings develop anxiety disorders and depression and can be prone to panic on a given day. When Mr Watson-Munro examined him, he was well oriented for time, place and person, prompt for his appointment, and able to give a reasonable account of his life. (f)Dr Jacobs and Mr Borenstein believed court proceedings will lead to an exacerbation of his existing chronic psychological/psychiatric disorder. (g)Mr Watson-Munro felt he may well psychologically decompensate as a consequence of anxiety when placed in the witness box. Dr Jacobs and Mr Borenstein considered this likely. Mr Watson-Munro recommended that he be treated with respect and questioned slowly. Mr Watson-Munro did not disagree with Dr Jacobs that, due to his anxiety and its intrinsic nature on his condition, he would have great difficulty in recalling events and properly instructing counsel, and ultimately this could be to his disadvantage. (h)Mr Watson-Munro proposed that he should be assessed on the day of the hearing if it proceeded before 4 September 2012. Dr Jacob's opinion was that if he had time to resolve the issues which bring him before the Court, then his anxiety may dissipate and the alleged offence will be resolved. (i)There was consensus that he required ongoing treatment for his symptoms which are becoming more acute and are intensifying as the court date approaches. 22The evidence of Mr Gordon Hartley of the respondents' solicitor since the commencement of the proceedings, was that he has spent over 10 hours with Mr Rappaport to attempt to prepare a response to the Council's contempt proceedings; to date he has managed to prepare approximately three pages of a draft affidavit in response; and he estimates that Mr Rappaport will need to prepare about 100 pages of affidavit material to respond. CONCLUSION 23It seems to me unlikely that a realistic estimate can be made of how much affidavit evidence will be required from Mr Rappaport until it is known how he will plead. The contention that he is unfit to plead has been abandoned. Notwithstanding that the proceedings have been on foot for some five months, he has not yet pleaded. There has been no indication as to how he might plead. The basic thrust of the contempt charges against him is that for over a year he has disobeyed injunctions restraining unlawful use of the two premises. Prima facie, that is not a complex proposition. I will proceed on the assumption that he pleads not guilty. 24I accept that Mr Rappaport has suffered from significant psychological disorder - including anxiety, depression, stress and panic - which sometimes impaired his attention, concentration, comprehension, memory and decisiveness, and which has been exacerbated by the stress of these proceedings. I also accept that this has made it difficult to obtain instructions from him in relation to the contempt charges and would cause him to experience difficulties in following complex arguments, maintaining attention and concentration, and instructing counsel at a lengthy hearing. 25Mr Rappaport's psychological condition was linked by Dr Jacobs to his ear infection, for which he was scheduled to have an operation last July. His counsel informed me from the bar table that he cancelled the surgery. No explanation has been provided. Further, Mr Rappaport has not acted on Mr Borenstein's advice to engage in therapy, which Mr Borenstein expected would achieve positive results. No explanation has been provided for this omission either. There is no evidence that his condition is such that he could not make a sensible decision about such surgery or therapy. Prima facie, the unexplained failure by Mr Rappaport to take either of those steps to resolve or abate his condition is not sensible and reflects poorly on him in the context of his application for a lengthy adjournment which the taking of those steps may well have obviated. 26In my view, the weight of the evidence, particularly that of Mr Watson-Munro and to a substantial extent Mr Borenstein, favours the conclusion that, notwithstanding his difficulties, Mr Rappaport is at present able to understand the nature of the charges; able to plead to them; has a general understanding of the nature of the proceedings; is capable of preparing, albeit more slowly than usual, for the hearing; is capable of instructing lawyers; and is capable of conducting a hearing through counsel. Although, if his condition does not improve, the hearing should be conducted with due regard to his difficulties, if necessary including - if he enters the witness box - by slow questioning and regular breaks. 27I am not satisfied that Mr Rappaport's condition is such that the proceedings against him should be adjourned. However, his condition should be recognised by a pre-hearing timetable which is more generous to him than is normally afforded. 28The respondents' adjournment application is dismissed. Costs are reserved including the costs of the second respondent's notice of motion filed on 5 July 2012. The proceedings will be listed before the List Judge on Friday 14 September 2012 to take a plea from the second respondent and for directions to progress the contempt charges towards a hearing. 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: 11 September 2012