Burwood Council v Wanless [2014] NSWLEC 20

Land and Environment Court New South Wales

Medium Neutral Citation: Burwood Council v Wanless [2014] NSWLEC 20 Hearing dates: 26 February 2014 Decision date: 26 February 2014 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [21] Catchwords: CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with Court orders to cut vegetation on her property and to maintain the cut vegetation - respondent guilty of contempt as charged - lump sum fine imposed - respondent to pay the applicant's costs on the motion for contempt Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 3A Local Government Act 1993 Cases Cited: Burwood Council v Ruan [2008] NSWLEC 167 Wood v Staunton (No. 5) (1996) 86 A Crim R 183 Category: Principal judgment Parties: Burwood Council (Applicant) Ms Susan Wanless (Respondent) Representation: Ms C A Middleton (Solicitor) (Applicant) No appearance for the respondent Houston Dearn O'Connor (Applicant) No appearance for the respondent File Number(s): 40831 of 2011 Publication restriction: No

Judgment 1On 14 December 2011, this Court made orders against Ms Wanless, the owner and occupier of residential land at 22 Austin Avenue, Croydon, regarding cutting and maintaining vegetation on her property. The precise terms of the orders are important and I will return to these in a moment. The orders were made in Ms Wanless' absence. The Council served the sealed Court orders on Ms Wanless personally on 21 December 2011. 2Ms Wanless failed to comply with the first order that she cut certain vegetation within the time ordered by the Court of 14 days of service of the orders. 3Thereafter, as ordered by the Court, the Council undertook the works the subject of the first order. On 9 February 2012, the Council, through contractors, cut vegetation on Ms Wanless' property. The Council tendered photographs taken on 9 February 2012 on the morning before the work commenced (showing the overgrown rear yard, particularly by a creeper commonly called Morning Glory), during the work, and at the conclusion of the work (showing the rear yard cleared of the creeper and undergrowth and with mown grass). 4The vegetation on the property has, however, regrown since that time. The Council adduced evidence from its officers of inspections on 2 May 2012 (by Mr Morley) and 23 July 2012, 3 December 2012, 6 June 2013 and 12 August 2012 (by Mr Henderson). The officers took photographs of the rear yard and the front yard of the property showing, over the period, the regrowth of vegetation, particularly of the Morning Glory creeper, but as well of grass. 5By permitting this regrowth of vegetation, the Council contended that Ms Wanless is in breach of order 4 of the Court's orders and that such breach constitutes a contempt in connection with the proceedings. The Council has applied, by notice of motion in the proceedings filed on 22 August 2013, for Ms Wanless to be punished for the contempt. The Council filed, also on 22 August 2013, with the notice of motion a statement of charge in a separate document. The statement of charge specified the contempt of which Ms Wanless was alleged to be guilty, namely failing to comply with order 4 of the Court's orders made on 14 December 2011. 6Council served the notice of motion, statement of charge and three affidavits of Mr Jenner, Mr Morley and Mr Henderson that were filed in support of the notice of motion, on Ms Wanless at her property (as permitted by the Court's orders for substituted service made on 20 September 2013). 7The notice of motion was returnable before the Court on 11 October 2013. Ms Wanless did not appear. Directions were made. The Court's orders were entered and a sealed copy was served on Ms Wanless along with further affidavits of Mr Henderson and Mr Morley. The notice of motion was returned before the Court on 29 November 2013 when it was fixed for hearing on 26 February 2014. Ms Wanless did not appear. The Council notified Ms Wanless on 29 November 2013 of the hearing date and reminded her on 5 February 2014 of the upcoming hearing. 8I am satisfied that Ms Wanless has been served with the original Court orders, the notice of motion and statement of charge as to contempt, and the affidavit evidence in support, and has been given notice of the interlocutory and final hearing dates of the notice of motion, but has elected not to appear on any of these occasions. I am satisfied that it is appropriate in the circumstances to proceed to determine the Council's notice of motion and statement of charge in her absence. 9The Court orders made on 14 December 2011 required Ms Wanless to do two things: first, to cut vegetation on her property and, second, to maintain the cut vegetation. The first obligation flowed from order 1 which stated: The respondent must, within 14 days of the date of service of these orders, trim, prune or otherwise cut all grass and weeds at the front, sides and rear of 22 Austin Avenue, Croydon, NSW ('the subject premises') so that the said grass and weeds do not exceed the height of 10 centimetres above the finished ground level and must remove from the subject premises the said trimmed, pruned and cut grass and weeds. 10The expression "all grass and weeds" was not defined in the Court order. The Council contended that the words bore their ordinary English meaning. For "weeds" this meant: "(2) any useless, troublesome, or noxious plant, esp. one that grows profusely": Macquarie Dictionary. The Council contended that the Morning Glory creeper met this description of a weed, growing profusely in the rear yard of the property and on the fences and into neighbours' properties. Grass grew in the front and rear yards of the property. Under the Court orders, if Ms Wanless failed to cut the grass and weeds within the time specified in the first order, the Council was ordered to undertake that work (order 2). 11The second obligation on Ms Wanless flowed from order 4 which stated: The respondent must thereafter maintain all grass and vegetation at the front, sides and rear of the subject premises so that the grass and vegetation does not exceed a height of 10 centimetres above ground level. 12The expression "all grass and vegetation" was not defined in the Court order. In the context of the first order, and having regard to the use of the word "thereafter", the grass and vegetation referred to in the fourth order must be taken to mean the grass and weeds referred to in, and required to be cut by, the first order. Order 4 cannot be considered to include vegetation other than the grass and weeds referred to in order 1. 13The Council contended that Ms Wanless was in breach of order 4 by failing to maintain, at the required height of 10 centimetres above ground level, the grass and the Morning Glory creeper that Ms Wanless was required by order 1 to cut and that the Council cut on 9 February 2012 when Ms Wanless failed to cut them. 14The Council's photographic evidence showed the grass and the Morning Glory creeper before and after being cut on 9 February 2012. The Council's affidavit evidence and photographic evidence also showed the regrowth of both the grass and the Morning Glory creeper to more than the required maximum height of 10 centimetres in the period after 9 February 2012 to 12 August 2013. There is no evidence of the condition of the grass or creeper after 12 August 2013. 15I am satisfied, beyond reasonable doubt, that Ms Wanless has failed to comply with order 4 of the Court's orders with respect to the grass and the Morning Glory creeper. I am satisfied that the Morning Glory creeper meets the description of being a "weed" within the meaning of order 1 and that it was required by order 1 to be cut to 10 centimetres and by order 4 to be maintained at that height of 10 centimetres above ground level. 16I find, therefore, that Ms Wanless is guilty of contempt by failing to carry out the work required by order 4 in the period up to 12 August 2013. 17The question is what penalty should be imposed for this proven contempt. Imprisonment is not an appropriate punishment in the circumstances of this case. A fine is the other available penalty. The purpose of the fine is not only to punish Ms Wanless for the proven contempt, but also to encourage Ms Wanless to change her behaviour so as to comply with the Court orders by maintaining the grass and the Morning Glory creeper at the required height. 18Ms Wanless, as far as can be evaluated from her correspondence with the Council annexed to the affidavit evidence, feels a sense of aggrievement by the Council's actions in issuing her with the original order under the Local Government Act 1993, enforcing that order by proceedings in this Court, and carrying out the works ordered by the Court upon failure of Ms Wanless to do the works herself. Unfortunately, this has distracted Ms Wanless from properly appreciating that she has been ordered by the Court to cut and maintain vegetation on her land and of the serious consequences that will flow to her if she fails to comply with the Court's orders. The Court's finding that she is guilty of contempt and the imposition of a fine on her may serve the purpose of causing Ms Wanless to appreciate these matters. 19I consider a fine is appropriate to punish for the proven contempt. I consider a fine in the amount of $1,000 will be sufficient in the circumstances to achieve the purpose of punishment and sentencing for this contempt. I take into account the matters relevant to determining punishment for contempt, as summarised by Dunford J in Wood v Staunton (No. 5) (1996) 86 A Crim R 183, 185 and by Biscoe J in Burwood Council v Ruan [2008] NSWLEC 167 at [18], as well as the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. 20The Council also seeks its costs of the notice of motion and statement of charge. In the circumstances of this case, it is appropriate for the Council to be compensated for bringing the contempt proceedings by an order for costs. This should be on the ordinary basis. 21For these reasons, I make the following orders: (1)The respondent is found guilty of contempt by failing to do the works required by order 4 of the orders made by this Court on 14 December 2011, as charged in the statement of charge filed on 22 August 2013. (2)The respondent is fined the sum of $1,000 payable to the Registrar of the Court within 28 days. (3)The respondent is to pay the applicant's costs of this motion for contempt as agreed or assessed.