Land and Environment Court New South Wales Medium Neutral Citation: Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Hearing dates: 26 October and 1 November 2018 Date of orders: 01 November 2018 Decision date: 01 November 2018 Jurisdiction: Class 4 Before: Pepper J Decision: Application for a stay of orders pending appeal refused with costs. See orders at [36]. Catchwords: CIVIL PROCEDURE: application for stay of orders pending appeal of contempt conviction and penalty – discretionary considerations – stay refused. Legislation Cited: Environmental Planning and Assessment Act 1979, s 121B Fines Act 1996, ss 4, 5 Protection of the Environment Operations Act 1997, s 96 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Cmunt v Snowy Monaro Regional Council [2018] NSWCA 237 Cmunt v Vescio; Broder [2018] NSWCA 21 Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95 Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136 Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 Category: Procedural and other rulings Parties: Snowy Monaro Regional Council (Applicant) Marie Cmunt (First Respondent) Jiri Cmunt (Second Respondent) Representation: Counsel: Ms N Hammond (26 October 2018) and Mr R O'Gorman Hughes (1 November 2018) (Applicant) Ms M Cmunt (in person) (First Respondent) Mr J Cmunt (in person) (Second Respondent) Solicitors: Bradley Allen Love Lawyers (Applicant) N/A (First and Second Respondents) File Number(s): 2016/284609 Publication restriction: N/A EX TEMPORE Judgment The Cmunts Seek a Stay of Orders Imposing Fines 1. By notice of motion dated 24 October 2018, the respondents, Mrs Marie Cmunt and Mr Jiri Cmunt ("the Cmunts"), seek an order staying "all lower court proceedings and orders" made by Sheahan J on 31 August 2018 (Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136) ("the contempt proceedings"). 2. In the contempt proceedings the Cmunts were each convicted of the charge of contempt brought against them in relation to their disobedience of an order made by Preston J on 3 August 2017, which required them "to cease keeping dogs on the Premises" within 60 days (Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95) ("the substantive proceedings"). Mrs Cmunt was fined $15,000 and Mr Cmunt was fined $5,000 (at [83]). An order was also made permitting the Council, after 49 days, to seize and remove any dogs kept on the premises by the Cmunts ("the substituted performance order") at [66] and [83]. Orders were also made imposing a daily penalty if either of the Cmunts were found to be keeping dogs 60 days from the date of the contempt orders (at [83]). 3. Sheahan J made the following relevant orders (at [83]) ("the contempt orders"): 83 The Court makes the following orders: (1) Marie Cmunt is convicted of the charge of contempt in the Statement of Charge dated 24 November 2017. (2) Jiri Cmunt is convicted of the charge of contempt in the Statement of Charge dated 24 November 2017. (3) Marie Cmunt is fined $15,000. (4) Jiri Cmunt is fined $5,000. (5) The Applicant Council is permitted, after 49 days, to seize and remove any dogs kept on Lot 21 DP250314, known as 12 Kiparra Drive Berridale, NSW 2628 ('the Premises') whilst the Premises are owned or occupied by the First Respondent or Second Respondent. (6) If after 60 days from the date of these orders, Marie Cmunt, is found to be keeping dogs on those premises contrary to Order 2 made by the Court on 3 August 2017, she is to pay a daily penalty of $1,500. (7) If after 60 days from the date of these orders, Jiri Cmunt, is found to be keeping dogs on those premises contrary to Order 2 made by the Court on 3 August 2017, he is to pay a daily penalty of $500. (8) The Respondents Marie Cmunt and Jiri Cmunt are ordered, jointly and severally, to pay the costs of the Council in these contempt proceedings, on a party-party basis, as agreed or assessed. … 1. The premises the subject of the substantive proceedings and the contempt proceedings are located at 12 Kiparra Drive, Berridale, New South Wales ("the premises"). 2. The applicant, Snowy Monaro Regional Council ("the Council"), opposes the grant of a stay. 3. When the motion initially came on for hearing, it became apparent that the Cmunts had not been served with a copy of the evidence or written submissions upon which the Council sought to rely. The hearing was therefore adjourned until today to enable this to occur. 4. Having read the affidavit of service of Mr Michael Broder sworn on 31 October 2018, I am satisfied that proper service of all the materials the Council seeks to rely upon has now occurred. Mrs Cmunt confirmed orally that she had received the necessary documents. The Cmunts are Found Guilty of Contempt 1. In Snowy Monaro Regional Council v Cmunt, Preston J found that the Cmunts had failed to comply with a prevention notice to cease keeping dogs in accordance with s 96 of the Protection of the Environment Operations Act 1997. His Honour also declared that the Cmunts had failed to comply with a Structures Order and an Advertising Sign Order, in breach of s 121B of the then Environmental Planning and Assessment Act 1979. 2. In Cmunt v Vescio; Broder [2018] NSWCA 21, Beazley P considered whether the orders of Preston J should be stayed pending an appeal of his decision. Except for the keeping of dogs on the premises, her Honour held that the orders had been satisfied (at [23]). Her Honour dismissed the stay application because the substance of the appeal was "not strongly arguable" (at [21]) and there was no prejudice to the Cmunts, because Mrs Cmunt had confirmed that she did not keep dogs on the premises (at [23]). 3. As stated above, in the contempt proceedings Sheahan J found the Cmunts guilty of contempt and imposed fines. His Honour accepted the Council's evidence that the Cmunts had failed to comply with the order to cease keeping dogs on the premises (at [61]). 4. In Cmunt v Snowy Monaro Regional Council [2018] NSWCA 237, Basten and Leeming JJA and Emmett AJA dismissed an appeal against the original orders made by Preston J. The Court did so noting that the appeal was "without merit" (at [52]). 5. During the hearing before the Court of Appeal, the Council undertook to make an application to vary the contempt orders made by Sheahan J, so that orders 5, 6 and 7 would not commence until 14 days after the judgment was handed down by the Court of Appeal. Those orders were the substituted performance order and the daily penalty orders. This did not include the orders imposing the fines. On 20 September 2018 the contempt orders were accordingly amended to reflect the Council's undertaking. 6. Therefore, as at 5 November 2018, the Council can remove the dogs from the premises and the Cmunts will be liable for a daily penalty for keeping dogs on the premises. The urgency of this application is therefore apparent. 7. Notices of Intention to Appeal were filed by the Cmunts on 24 and 25 September 2018, respectively, in the Court of Criminal Appeal from the decision of Sheahan J. 8. Because no notices of appeal have been filed, the grounds of appeal are not yet known. However, as Beazley P said in Vescio, while the Court is entitled to have regard to the substance of the appeal, in circumstances where there is no argument yet advanced on the appeal this is not a primary consideration in determining whether a stay should be granted (at [13]). Relevant Legal Principles in Granting a Stay of Orders Pending an Appeal 1. The relevant principles for the grant of a stay pending an appeal are set out in the seminal decision of Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (at 694 - 695) and more recently by this Court in Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 (at [34] – [39]). 2. The principles may be relevantly summarised as follows: 1. first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; 2. second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; 3. third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; 4. fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; 5. fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and 6. sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case. The Reasons Advanced by the Cmunts for the Stay 1. In her affidavit sworn on 31 July 2018, read in this application, Mrs Cmunt deposed that: 1. the appeal against the contempt proceedings would be rendered nugatory if the orders in the contempt proceedings were not stayed; 2. the Council had not demonstrated that the Cmunts had breached Preston J's orders by keeping dogs on the premises; 3. the Cmunts did not reside at the premises and that they did not own any animals located at the premises; 4. there was no evidence that any neighbours or residents from, or near, the premises had complained about the dogs barking; 5. Mr Broder had submitted complaints about dogs barking at the premises, and therefore, he had a conflict of interest because he was a Council officer; 6. the complaints were from people who lived and worked in Sydney; 7. Mr Pulis, who had submitted a complaint, had sent four complaints using different variations of his name. Further, Mr Pulis was working in Canada and only visited his Berridale property in the winter season; 8. Mrs Robinson, another purported complainant, had never submitted a complaint to the Council; 9. the fifteen inspection reports (commencing from 2014) confirmed that the Cmunts did not own any animals; 10. on 28 August 2015 Cooma Local Court dismissed all complaints against the Cmunts concerning barking dogs; 11. the Council had manipulated evidence produced by Mrs Cmunt; and 12. Mr Broder had falsified evidence. 1. The reasons for seeking the stay are contained in a document headed Submission of Marie Cmunt and Jiri Cmunt for motion dated 22.10.18, filed with the notice of motion. 2. The Cmunts' written submissions for the grant of a stay argued that "the Court hearing was made in our absence during our illness and during the time of our Appeal with the Court of Appeal". The written submissions also referred to medical evidence from August 2018. 3. During the hearing Mrs Cmunt made oral submissions similar to the matters deposed to in her affidavit. The substance of her arguments were that: 1. the Cmunts were not the owners of the premises and they did not own the dogs located at the premises; 2. by reason of ill health and their status as pensioners, they could not afford to pay the fines. A stay was therefore required until after their appeal from the decision of Sheahan J had been determined; 3. the appeal would be rendered nugatory if no stay was granted because "we will be in jail"; 4. as a complainant and an employee of the Council, Mr Broder had a conflict of interest in the proceedings; 5. Mr Broder had provided false evidence; 6. Mr Broder trespassed on several properties while conducting his inspections; 7. photographs of Mrs Cmunt being present at the premises had been manipulated; 8. there was no evidence of noise complaints other than that of Mr Broder; and 9. Preston J had held in the substantive proceeding that the Council had no power to seize the dogs located at the premises. The Council's Submissions Opposing the Stay 1. The Council relied on the evidence contained in the affidavit of Mr Michael Broder sworn on 25 October 2018. Mr Broder is the Liquid Trade Waste Officer employed by the Council. Relevantly, he deposed that: Continued presence of dogs at the Premises after the Contempt Orders made 9. On 24 October 2018, at approximately 10.42am I attended Kiparra Drive, Berridale with Greg Foster, a Ranger at the Council for the purpose of serving documents on the First and Second Respondents. 10. Upon arrival, I first went to the property at 18 Kiparra Drive. The backyard of 18 Kiparra Drive abuts the backyard of the Premises. 11. I entered the backyard of 18 Kiparra Drive and walked down to the dividing fence between 18 Kiparra Drive and the Premises. I climbed up onto a mound of dirt located in the backyard of 18 Kiparra Drive adjacent to the Premises and looked over the dividing fence into the backyard of the Premises. 12. I saw a person I know to be the first respondent, Mrs Marie Cmunt, through the window of the house on the Premises looking towards the dividing fence between 18 Kiparra Drive and the Premises. I saw up to 5 dogs running around the backyard on the Premises. 13. I returned to the Council's offices in Berridale and recorded my observations in my contemporaneous notebook. I incorrectly stated in my notebook entry that I attended the Premises on 23 October 2018. I confirm that I attended the Premises on 24 October 2018. … 14. Since the hearing of the Contempt Proceedings I have continued to receive complaints from residents of Kiparra Drive, Berridale concerning the continued presence of barking of dogs at the Premises. 1. The Council submitted that none of the reasons advanced by the Cmunts provided a proper basis for the grant of a stay. 2. In relation to the argument concerning the ownership of the dogs at the premises, the Council submitted that the Court had previously rejected the Cmunts' claims in this regard. It relied upon the findings of: 1. Preston J in Snowy Monaro Regional Council v Cmunt (at [206]); 2. Emmett AJA (Basten and Leeming JJA agreeing) in Cmunt v Snowy Monaro Regional Council (at [23] and [26]); and 3. Sheahan J in the contempt proceedings (at [77]). 1. In relation to the remaining contentions of the Cmunts, the Council submitted that, first, the Cmunts have not demonstrated any prejudice if the stay is not granted. Any fines paid will be refunded if their appeal is successful. The substituted performance order will cause them no prejudice if they comply with the orders originally made by Preston J, which have never been stayed and which have been upheld by the Court of Appeal. 2. Moreover, if dogs are seized by the Council, they will be rehomed if their temperament permits (see the judgment of Sheahan J at [42]). As Beazley P concluded in Vescio (at [24]): 24. In all the circumstances, it seems that there is no prejudice to the appellant pending the appeal if she says that she does not keep dogs on the premises, so that it cannot be said that the appeal will be rendered negatory unless a stay is granted. I have determined that the application for a stay should be refused and accordingly I order that the appellant's notice of motion for a stay be dismissed. 1. Second, in weighing considerations such as the balance of convenience and the competing rights of the parties, the Court must weigh the apparent lack of prejudice to the Cmunts against the ongoing disturbance and the loss of amenity being suffered by nearby residents (see the decisions of Preston J at [2] and Sheahan J at [38]-[48], respectively). As the Council's evidence demonstrates, the disturbance is continuing (see the affidavit of Mr Broder sworn on 25 October 2018). There is no substance to the asserted conflict of interest on the part of Mr Broder, and in any event, this is a matter more properly raised at the appeal from Sheahan J's decision. 2. Third, the health issues referred to in the Cmunts' submissions were the subject of consideration by Sheahan J who observed that "the Cmunts have regularly sought to delay any proceedings concerning dogs on their premises on the grounds of ill-health" (at [16]). In this application no medical evidence has been provided by the Cmunts to support their claim of poor health. 3. Fourth, assuming that impecuniosity is a ground warranting a stay of the orders, the Cmunts have not adduced any evidence in support of this contention. 4. In addition, as the Council observed, the fines will be refunded if the Court of Appeal overturns Sheahan J's decision; the continuing offence fines will not be incurred if the Cmunts are not keeping dogs at the premises; and the Cmunts can apply to pay the fines in instalments or to delay the payment of the fines, under ss 4 and 5 of the Fines Act 1996. 5. Fifth, the Council submitted that Preston J had held that the Council had the power to seize the dogs in the substantive proceedings and that such an order was appropriate (at [211]). In the contempt proceedings, Sheahan J also considered the seizure order to be appropriate (at [67]-[71]). 6. Sixth, in all previous decisions it has been found that there is sufficient evidence that the Cmunts owned and lived at the premises (Snowy Monaro Regional Council v Cmunt at [1] and [92]; Snowy Monaro Regional Council v Cmunt (No 2) at [24]-[26] and Cmunt v Snowy Monaro Regional Council at [44]). 7. Finally, the Court of Appeal in Cmunt v Snowy Monaro Regional Council was satisfied that the complaint relating to Mr Broder's perceived "conflict of interest" (at [17]) had "no substance" (at [35]). Conclusion and Orders 1. I accept the submissions of the Council. I particularly note that the Cmunts have provided no recent medical evidence to support their claims of ill health and no evidence whatsoever in support of their claims of impecuniosity. There is no cogent evidence supporting their claims of prejudice if the stay is not granted. 2. The Council seeks its costs of the application. The Cmunts argued that they could not afford to pay the Council's costs. However, this is not a proper basis for the Court not to order costs against them. Having said this, it would not be appropriate for the Council to be awarded any costs associated with the initial vacation of the hearing date of this application on the basis that the adjournment was caused by the Council's failure to serve its evidence and written submissions on the Cmunts in a timely manner. 3. The application for a stay is refused. The Cmunts must pay the Council's costs of the notice of motion dated 24 October 2018, except any costs associated with, and including, the adjournment of the hearing on 26 October 2018. ********** 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: 02 November 2018