Land and Environment Court sentences on contempt of court orders

A recent case highlights the Land and Environment Court’s power to sentence parties found to be in contempt of court orders to a custodial sentence, even where those orders were made in the course of civil proceedings.

The NSW Land and Environment Court has shown willingness to sentence parties found to be in contempt of court orders to a custodial sentence, where the proceedings served a punitive purpose and were made in the context of civil proceedings. In this case the breach was contumacious – that is the contemnor knew and specifically intended to disobey a court order and defy the Court’s authority.

Justice Moore recently handed down his judgment in Lake Macquarie City Council v Gordon [2017] NSW LEC 122 where the matter was heard in the Class 4 jurisdiction of the Land and Environment Court, being its civil enforcement jurisdiction.

Facts

Mrs Gordon, the First Respondent, owns a property in Redhead, a beachside suburb south of Newcastle in the local government area of Lake Macquarie City Council (Property).

Her husband Mr Gordon, the Second Respondent, undertook extensive earthworks on the Property.

Lake Macquarie City Council (Prosecutor) brought proceedings in the Class 4 jurisdiction of the Land and Environment Court for breaches of section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 in September 2015. Orders were made on 2 May 2016 by Justice Moore as to a specific remediation plan for the Property, including a timetable for effecting the plan (May 2016 Orders). This was to be supervised by the Respondents’ consulting expert.

Mr Gordon assumed responsibility for the remediation plan. In the months following the May 2016 Orders, he carried out earthworks in two stages.

Until late September 2016, the nature of the earthworks were compliant with the May 2016 Orders, although were not carried out in accordance with the required timetable (Stage 1 Works).

However, the earthworks carried out after this period were undertaken contrary to the May 2016 Orders (Stage 2 works). The Respondents’ consulting expert had unequivocally advised Mr Gordon to this effect, and Mr Gordon had accepted that they were in breach of the May 2016 Orders.

On 10 October 2016, Lake Macquarie City Council filed a Notice of Motion seeking orders that the Respondents be punished for contempt and that they pay the Prosecutor’s costs on an indemnity basis.

Court-ordered mediation between the parties was required to stabilise the land and ensure that damage to the neighbour’s property did not occur and an agreement between the parties was reached to this effect.

After the mediation, Amended Statements of Charge charging the Respondents with contempt of the May 2016 Orders was filed.

The Prosecutor’s allegations

The Prosecutor alleged that the conduct of both Respondents was in contempt of the May 2016 Orders.

The charges included:

1. a failure to complete the engineering works within a period of 4 months (Charge 1)
2. a failure to provide the Prosecutor with certification from the consultant expert that all relevant engineering works had been carried out within one month of Charge 1 (Charge 2) and
3. that the Stage 2 Works were carried out contrary to the May 2016 Orders and without development consent (Charge 3).

Charges 1 and 2 related to the Stage 1 Works and Charge 3 related to the Stage 2 Works.

The Respondents each entered pleas of guilty for all charges.

In summary

Quoting Justice Robson in Council of the City of Sydney v The Owners of Strata Plan 18820 [2017] LEC 81, Justice Moore affirmed that while the difference between civil and criminal contempt is largely illusory, disobedience with regard to a court order made in civil proceedings may become criminal contempt if:

• it is alleged (and proven) that the contempt was contumacious, in that it was wilfully and obstinately disobedient
• the contempt proceedings only serve a punitive purpose insofar as they are a punishment for a past breach and do not serve a remedial or coercive punishment.

Justice Moore helpfully clarified that contempt is contumacious where there is a specific intention to disobey a court order or undertaking, which evidences a conscious defiance of the Court’s authority.

Justice Moore stated that the following factors were relevant to sentencing for contempt:

1. the seriousness of the contempt proved
2. whether the contemnor was aware of the consequences to himself or herself of what he or she did
3. the actual consequences of the contempt on the relevant trial or inquiry
4. whether the contempt was committed in the context of serious crime
5. the reason for the contempt
6. whether the contemnor has received any benefit by indicating an intention to give evidence
7. whether there has been any apology or public expression of contrition
8. the character and antecedents of the contemnor
9. general and personal deterrence, and
10. denunciation of the contempt.

He affirmed that while the Crimes (Sentencing Procedure) Act 1999 does not apply to sentencing for contempt, but provides a useful framework for the consideration of relevant objective and subjective factors.

Outcome

Costs were awarded against the Respondents on an indemnity basis. While it was noted that a Prosecutor may reasonably expect this to be the case unless there is a reason to depart, it was particularly appropriate in this instance given the Prosecutor is a public authority trying to enforce planning law and dissuade future contraventions.

In considering the factors for sentencing, Justice Moore issued a combined $5,000 fine to Mr Gordon for contempt in relation to Charges 1 and 2, given the Stage 1 Works complied with the May 2016 Orders in all respects aside from time.

However, Justice Moore sentenced Mr Gordon to three months imprisonment in relation to Charge 3.

In reaching this decision, Justice Moore concluded that Mr Gordon had not expressed genuine contrition and remorse, displayed a lack of insight into the nature of the offending conduct, had prior convictions pertaining to environmental offences and critically, expressly indicated that the Stage 2 Works did not comply with the court’s orders prior to undertaking them. This contributed to the need for specific deterrence.

Further Justice Moore noted that:

“there is, as a matter of general proposition, a strong public interest in maintaining the integrity of the planning system and in ensuring that orders of the Court are obeyed”

and that

“a powerful message needs to be sent that wilful disregard of court orders concerning remediation of earlier unlawful development activities is not to be tolerated.”

However, Justice Moore found that there was limited specific and general deterrence value in imposing a conviction on Mrs Gordon. He accepted that Mrs Gordon was before the Court as a consequence of the wilful acts and omissions of her husband, that she was merely a “passenger” in Mr Gordon’s enterprises concerning the Property and that she was submissive to her husband’s dominant personality in this regard.

In such circumstances, he found that the costs order made against the Respondents on an indemnity basis was a very significant burden to which additional financial penalties would have contributed insignificantly.

Implications

This case demonstrates the Court’s authority to sentence parties found to be in contempt of court orders to a custodial sentence, even where those orders were made in the course of civil proceedings.

For this to occur, the breach must be contumacious and the contempt proceedings only serve a punitive purpose

Parties in the civil enforcement jurisdiction of the Land and Environment Court who are subject to court orders must therefore take care to ensure that they comply with such orders.