Sutherland Shire Council v Sawyer [2000] NSWLEC 162

Land and Environment Court of New South Wales

CITATION : Sutherland Shire Council v Sawyer [2000] NSWLEC 162 APPLICANT: PARTIES : Sutherland Shire Council RESPONDENT Christopher Sawyer FILE NUMBER(S) : 40015 of 2000 CORAM: Sheahan J KEY ISSUES: Contempt :- Local Government Act 1993 LEGISLATION CITED: Land and Environment Court Act 1979 Crimes (Sentencing Procedure) Act 1999 Supreme Court Rules 1970 CASES CITED: Australian Consolidated Press Ltd v Morgan (1964) 112 CLR 483 DATES OF HEARING: 10/05/2000, 13/06/2000, 13/07/2000, 27/07/2000 EX TEMPORE 07/27/2000 JUDGMENT DATE :

APPLICANT Mr S Berveling Solicitors LEGAL REPRESENTATIVES: Abbott Tout RESPONDENT No appearance

JUDGMENT: IN THE LAND AND Matter Nos: 40015 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 27 July 2000

SUTHERLAND SHIRE COUNCIL Applicant v

CHRISTOPHER SAWYER Respondent JUDGMENT

1. The matter before the court is the final determination in respect of a charge of contempt in matter No. 40015 of 2000, but, by direction of the court on 10 May, that matter remains associated with the court file in matter No.40215 of 1999.

2. Both matters concern notices issued by Council to Mr Sawyer under s 124 of the Local Government Act 1993, in respect of his keeping of rabbits at No.4 Liffey Place, Woronora (Lot 24 in DP 238109) within the Sutherland Shire.

3. In matter 40215, Mr Sawyer challenged consequences which might flow from Council's execution of the first relevant notice, and in matter 40015 Council sought to enforce the thrust of the second relevant notice.

4. In order to deal with the current position in 40015 the court needs to recount some of the background of both matters.

5. Christopher Sawyer (also known at times as Adams or McClarent) has been a tenant of No.4 Liffey Place Woronora, apparently since December 1995.

6. He told Cowdroy J on 4 February that he had been keeping rabbits as pets for about five years (T11 L1), and that he was a " salesman " in " regular employment ".

7. On 6 July 1998 , after warning Sawyer, Council issued a notice under s 124 of the LGA requiring that he remove " all existing " rabbits from that address.

8. Correspondence then took place between Council and Mr Sawyer's then solicitors, Macedone Christie Willis, regarding the problem.

9. Eventually warrants were obtained, and Council, assisted by police, removed a large number of rabbits from No. 4 Liffey Place. Cowdroy J was told on 4 February that the number removed was 340.

10. Mr Sawyer commenced matter 40215 against the Council on 3 December 1999 and obtained interlocutory relief from Lloyd J that same day, in the form of an order preventing the Council from selling, disposing of or otherwise parting with its possession, custody or control of the rabbits seized.

11. When that matter came before me for final hearing in open court on 15 December 1999 , Sawyer's then Counsel, Mr Tim Robertson, did not challenge the power of the Council to issue its s 124 notice; nor the power of the Council and the police to enter his property, as they did on 30 November 1999, and seize the rabbits. Nor did he seek return of the rabbits to the Liffey Place premises.

12. Sawyer had commenced his proceedings essentially to prevent Council from disposing of his rabbits to defray the costs of their removal, but when the matter was before me on 15 December 1999, Sawyer settled it with Council on the basis of his giving an undertaking to the court that, if the Council and the court allowed him to keep, at 4 Liffey Place, two desexed rabbits in a cage, he would not keep , nor have under his care, custody or control, anywhere else within the Sutherland Shire, any other rabbits.

13. The court was informed on that occasion that Sawyer was finding another location, outside the Sutherland Shire and apparently in Hawkesbury Shire, at which he could keep his excess rabbits.

14. The Council, as Respondent to those proceedings, then consented, on the basis of Sawyer's undertaking, to an order that they return the rabbits to him within 7 days, together with any offspring.

15. In all the circumstances of that settlement, and after hearing argument on the question of costs, I delivered a short judgment in which I summarised the argument Mr Robertson had raised about Council's powers under s 678 of the LGA (to which I shall later return), and ordered that Council pay Sawyer's costs of those proceedings.

16. Sawyer has not been represented by solicitors or Counsel, at least not in this court, since that day. There has been no Notice of Ceasing to Act filed in 40215 and no appearance filed by any firm in 40015. His former solicitors appear to be dealing only with the assessment of the costs I ordered Council to pay in respect of the efforts of those solicitors in 40215 up to and including 15 December 1999.

17. The rabbits were apparently returned, but the rabbit population at 4 Liffey Place remained greater than two.

18. Sawyer explained to Cowdroy J on 4 February that he received only 133 back out of 340 and that many of those survivors were ill and in need of attention. Those that were well apparently went to a friend's property outside the Sutherland Shire, generally as the court had been told.

19. In any event, with the rabbit population remaining greater than two at Liffey Place, Council brought matter 40215 back before the court on 4 February 2000, by which time Council had commenced its own proceedings, namely the matter before me today, 40015 of 2000.

20. The history of these later proceedings may be briefly summarised.

21. On 5 January 2000 , Council issued a further order under the LGA s 124, which required again, in respect of 4 Liffey Place, that Sawyer "not keep rabbits on the premises other than two desexed rabbits in a cage ".

22. Until it settled 40215 with Sawyer on 15 December 1999, council had been seeking the removal of all rabbits from that address. This second s 124 order was consistent with the effect of the undertaking given in those proceedings.

23. Council, on 7 January 2000, allowed Sawyer a further seven days to comply with that second s 124 order.

24. However, after 20 rabbits were sighted at the premises on both 18 and 24 January 2000, matter 40015 was commenced on 28 January 2000 .

25. The class 4 application in 40015 sought the court's enforcement of the Council's 5 January 2000 s 124 order. It was made returnable before Cowdroy J, with the notice of motion Council had filed in matter 40215, on 4 February 2000. The notice of motion in 40215 sought, primarily: 1. A declaration that Sawyer had not complied with the undertaking he gave the court on 15 December 1999. 2. An order that he not keep any rabbits in the Shire except two desexed rabbits in a cage at 4 Liffey Place.

26. Mr Sawyer appeared for himself in both matters before Cowdroy J on 4 February 2000 .

27. In the light of Sawyer's pleas about the condition of 15 of the 23 surviving rabbits which he had not by then sent to his friend's property outside the Council's area, and his assertion of ready co-operation at all times with Council's officers, Cowdroy J gave him until 3 March to implement the undertaking he had given me on 15 December 1999 in 40215.

28. During that hearing, Cowdroy J had a frank exchange with Sawyer in which Sawyer said he "can " and would " comply " with His Honour's orders (see transcript of 4 February 2000 p9 L50 to p10 L10 and later at p11 L9-10).

29. Sawyer undertook to His Honour that the extra rabbits would be removed. His Honour made clear to Sawyer that undertakings to the court must be complied with (Tp13 L44-45).

30. His Honour's formal order was that Sawyer " not keep after 3 March 2000 any rabbits or have any rabbits under his custody, care and control in … Sutherland Shire, with the exception of two (2) desexed rabbits in a cage at … 4 Liffey Place, Woronora ". The effect of that order of 4 February was to convert Sawyer's 15 December undertaking to the court into a mandatory order of the court, requiring compliance within 28 days.

31. His Honour also ordered him to pay the Council's costs of the Notice of Motion.

32. As His Honour did not want the position confused by the making of separate orders to the same effect, but in different proceedings, he stood over the question of interlocutory relief in matter 40015 to the Duty Judge list on 10 March.

33. On that day Bignold J stood it over again to 17 March, on which occasion he stood it over again to 14 April. His Honour also appointed 14 April to be the return date for process he was informed was about to be filed in 40215. On 14 April, as duty Judge, Lloyd J referred the two matters to the Registrar, who then fixed it for hearing on 10 May 2000.

34. Sawyer has neither appeared, nor been represented, at the court on any occasion on which either matter has been listed since 4 February 2000. Four Judges have now dealt with one or both cases at various times, and both have been before the Registrar on several occasions.

35. Sawyer apparently having again failed to comply, Council brought his proceedings, matter 40215, back before me on 10 May 2000, in association with Council's own proceedings, 40015.

36. On 10 May 2000 , Council asked the court to do two things: 1. to find Sawyer in contempt of the orders made, on 4 February 2000 by Cowdroy J, in Sawyer's own proceedings, 40215 of 1999; and 2. to make interlocutory orders against Sawyer in 40015 of 2000 in respect of his failure to comply with Council's s 124 notice to the same effect. 37. The effect of the court's pre 10 May orders, and also of the Council's second s 124 order, is that the rabbit population at 4 Liffey Place must be reduced to two desexed rabbits in a cage.

38. The court had before it on 10 May 2000 sworn evidence of the following rabbit counts at various times since 15 December 1999:

29 December 1999 - 80 5 January 2000 - 80 7 January 2000 - 20 18 January 2000 - 20 24 January 2000 - 20 6 March 2000 - 22 22 March 2000 - 10 8 May 2000 - 50 10 May 2000 - 50

39. I was, therefore, satisfied beyond reasonable doubt that Sawyer was, and then remained, both in contempt of the court's orders of 4 February 2000, and in breach of Council's s 124 order of 5 January 2000.

40. The court noted that the public interest dictates not only that orders of the courts must be obeyed, but also that the waste, odour and other consequences of intensive husbandry of rabbits in an urban or semi urban environment had the potential to cause public health, environmental, and " significant amenity problems " (Tp5 L31-32) which must be addressed.

41. After giving Mr Sawyer until 11.30am on 10 May to appear, or make some contact with the court: (i) I made the relevant declaration and mandatory order in 40015 in these terms: Court declares that: 1. The Respondent has failed to comply with an order pursuant to Section 124 of the Local Government Act 1993 issued by the Applicant Council and dated 5 January 2000 ('the Council's Order'). The Court orders that: 2. Until further order of the Court, the Respondent, Christopher Sawyer, is ordered to comply with Council's Order dated 5 January 2000. 3. The Respondent, Christopher Sawyer, is ordered to pay the Applicant Council's costs to date of these proceedings on an indemnity basis. 4. All exhibits are to be retained on the Court file No.40015 of 2000 and associated file No.40215 of 1999.

(ii) I convicted Mr Sawyer of contempt of the orders made, virtually with his consent, in 40215; and I ordered him to pay a fine of $10,000, plus $1,000 per day , until the rabbit population reduced to the nominated figure; and (iii) I also ordered him to pay all of Council's costs in 40015, and Council's costs after 15 December 1999 in 40215, on an indemnity basis.

42. The issues involved in these matters came before the court next on 13 July 2000 when only Council's matter, 40015, was listed.

43. Council charged Mr Sawyer with contempt of the orders I made in 40015 on 10 May.

44. There was, and is, no doubt at all that Sawyer had been notified of the orders made in both matters on 10 May, and of the listing of the contempt charge in 40015 on 13 July and today. He told Mr Simpson of the Council on 11 July that he would be present on 13 July, but he did not appear, nor was he represented. He told Mr Simpson on 18 July he would appear today. He volunteered a mobile phone number but it is apparently " turned off " and attempts to telephone him today have been unsuccessful.

45. Again on 13 July the court had before it sworn evidence of rabbit counts, to wit those I have earlier listed concerning the period 29 December 1999 to 10 May 2000, as well as the following, subsequent to 10 May 2000:

30 May 2000 - at least 60 1 June 2000 - at least 60 2 June 2000 - at least 60 11 July 2000 - 60 13 July 2000 - 70

46. Today the court has further sworn evidence of rabbit counts:

23 July 2000 - 30 25 July 2000 - 40 27 July 2000 - 40

47. The photographic evidence shows rabbits running free in the backyard in numbers greater than two.

48. Environmental harm is clear from the photographs and from the sworn evidence as to odour, and the spreading of waste on the subject land.

49. Council asked me on 13 July and again today to order that Sawyer be convicted and imprisoned for his contempt of the orders in 40015 , and also to make a declaration that the Council may enter the property to deal with the rabbits and the problems they have caused.

50. On 26 July Abbott Tout filed a form of " Draft Order " which, inter alia, provides for the court to declare that: 3. The Applicant may do all such things as are necessary or convenient to give effect to the terms of the Council's Order, including the seizure and disposal of any rabbits in excess of two (2) desexed rabbits kept on the property in a cage. 51. At the hearing on 15 December, it was argued on Sawyer's behalf that Council was severely limited in what it could do in the exercise of its powers under s 678 of the LGA, which relevantly provides as follows: (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. (2) … (3) … (4) … (5) Materials removed that are not saleable may be destroyed or otherwise disposed of. (6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned. (7) Nothing in subsection (3), (4) or (6) affects the owner's right to recover any amount from any lessee or other person liable for the expenses of repairs. (8) A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings. (9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628. (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

52. I have not quoted subsections (2), (3) and (4), which deal specifically with demolition of buildings, and sale of resulting materials, by Council, but I do not believe that they constrict the other enabling provisions of the section, and I am prepared to make the relevant declaration Council has sought.

53. Of immediate concern, however, is the public interest in observance of orders made by the courts in the exercise, by due process, of their powers.

54. On 13 July I found myself satisfied beyond reasonable doubt that Mr Sawyer was guilty of contempt of the orders I had made in 40015 on 10 May 2000. I commented that I could see no evidence of any attempt to comply with the court's orders.

55. Not only that, there was sworn evidence that, when Sawyer was served with those orders, and with the fine and other orders made in respect of proven contempt of orders made in 40215, he had told the Council's Mr Simpson, " This won't change anything ".

56. Notwithstanding both the proven lack of effort to comply, and the statement allegedly made by him when served, I was concerned that Sawyer was neither present, nor represented, and I stood the matter over for two weeks, until today, for further hearing on penalty. In doing so I said: Imprisonment is the very last resort of the courts in dealing with the behaviour of its citizens. Forced entry of their premises is also to be avoided where possible. I am certainly reluctant to make orders of either type, no matter how justified they may be, or seem to be, in the absence of Mr Sawyer.

57. I ordered that the Registrar write to him, and the letter dated 14 July says as follows: Justice Sheahan has directed me to inform you that in Proceedings No. 40015 of 2000 you have been convicted of contempt of the Orders made by His Honour on 10th May 2000, and His Honour has adjourned the proceedings to 9:30 am on Thursday 27th July 2000 for the passing of sentence upon you.

The Court has already imposed on you on 10th May 2000 fines of $10,000.00 plus $1,000.00 per day for contempt of Orders made in Proceedings No. 40215 of 1999. Those Orders have still not been complied with and daily penalties continue to accrue.

The Council has sought an order for your imprisonment and His Honour has granted a two week adjournment to provide you with an opportunity to comply with the various Orders the Court has made.

You are strongly encouraged to seek legal advice and to attend Court on the 27th July 2000 with legal representation.

58. I also made a further order for indemnity costs, and I ordered the solicitors for Council to also write to him, and to file and serve a copy of the orders the Council was seeking from the court.

59. On 26 July Abbott Tout filed Council Officer Simpson's affidavit of 18 July deposing to serving on Mr Sawyer personally on 16 July:

(a) Abbott Tout's letter of 13 July 2000. (b) Copies of the orders made in both proceedings on 10 May 2000. (c) A copy of Simpson's affidavit in 40015 dated 13 July 2000. 60. In part the Abbott Tout letter says:

Orders sought against you today: Council's solicitor sought orders from the Court that it punish you for the contempt by imprisonment, especially since the monetary penalty had not induced you to date to comply with the orders of the Court. Also sought were costs orders on an indemnity basis, and a declaration that the Council may do all such things as are necessary or convenient to give effect to the terms of Council's order dated 5 January 2000 and dispose of rabbits seized.

Court's order today The Court was satisfied beyond reasonable doubt that you are guilty of contempt. His Honour noted that the Council sought punishment by means of imprisonment. Such punishment is used as a last resort. The Court was reluctant today to order your imprisonment and instead adjourned the proceedings to 27 July 2000 so as to give you one last chance to meet the objectives of Council's order and repeated by the Court's orders, namely that you not keep any rabbits under your custody, care and control in the local government area of Sutherland Shire, with the exception of two (2) desexed rabbits in a cage at land at No.4 Liffey Place, Woronora. … If you continue to not comply with the Court's orders, then we are instructed to seek on 27 July 2000 an order that the Court punishes you for contempt by imprisonment. We will also seek an order that you pay Council's legal costs on an indemnity basis, and an declaration that the Council may do all such things as are necessary or convenient to give effect to the terms of Council's order dated 5 January 2000 and dispose of rabbits seized.

61. While the Draft Order was not served on Sawyer I am satisfied that Abbott Tout's letter gave him comprehensive details of the orders he was to face today.

62. Twice in the face of the court Sawyer has voluntarily agreed to comply with the stipulation or requirement that he reduce his rabbit population to two - his counsel gave me an undertaking on behalf of Sawyer, to that effect, on 15 December 1999, and he personally gave and repeated a commitment to that effect to Cowdroy J on 4 February 2000 (T9 L1 to T10 L5, and T11 L9-11).

63. From this account of relevant events it is important to note the consideration accorded to Sawyer by both Council and the court.

64. Council gave Sawyer from 6 July 1998 until 30 November 1999, to comply with the first s 124 notice.

65. On the first occasion the parties came before the court, Sawyer's undertaking was recognised as a step towards resolving proceedings he himself had found it necessary to commence, and the court made an order for costs in his favour.

66. Council took no action to enforce the undertaking until it issued its second notice on 5 January. It retreated from a " no rabbits " position to a " 2 pets in a cage " position, and then it granted Sawyer a further extension of 7 days to 14 January 2000.

67. It then waited a further 2 weeks before filing its class 4 proceedings.

68. Cowdroy J gave him a further month's grace on 4 February 2000 (T1) to comply with his own undertaking to me of 15 December 1999, and declined to proceed to even interlocutory orders in these proceedings until at least 10 March.

69. Bignold and Lloyd JJ then postponed that hearing until it came before the court on 10 May 2000.

70. On that day I delayed imposing the fines and making the orders until 11.30am, in the hope he would appear.

71. Despite the seriousness of the issues, the orders or undertakings, and their breach, Sawyer has not appeared at this court at all since he personally gave his informal undertaking to Cowdroy J in open court on 4 February 2000 and acquiesced in the order His Honour made.

72. When I adjourned the contempt proceedings for two weeks on 13 July, I said that the court was giving him " one last opportunity " to comply. I asked the Registrar and the Council's solicitors to urge him to attend and be represented.

73. He having chosen not to come I will deal with him in his absence.

74. Section 67(d) of the Land & Environment Court Act 1979 and Part 6 Rule 1 deal with this court's punitive powers in respect of contempt. The requirements of Part 55 of the Supreme Court Rules must be fulfilled to the letter. In both 40215 and 40015 they have been so fulfilled.

75. The penalty having been imposed already in 40215 but not yet paid, and the court having decided to facilitate the removal of the offending rabbits by the Council, the primary matter now before the court is the question of penalty for contempt of the orders in 40015.

76. Part 55 Rule 13(1) makes clear that the court has the options of fine or imprisonment or both. Rule 13(3) makes clear that sentencing options under the recently enacted Crimes (Sentencing Procedure) Act 1999 are also available to me.

77. The cases make it clear that if the contempt is " contumacious " in character, the court should not only enforce compliance with the relevant order, but may also consider imprisonment as the appropriate punishment for disobedience. See, e.g. Australian Consolidated Press Ltd v Morgan (1964) 112 CLR 483.

78. " Contumacy " is defined in the Shorter Oxford English dictionary as "perverse and obstinate resistance to authority " and " wilful disobedience to the summons or order of a court ".

79. The Council may be able to secure the outcome sought by the orders of this court, without any action at all on the part of Sawyer, but there is no doubt that he has defied the authority of the court. His comment to Mr Simpson that the court's orders in both matters would not "change anything " is certainly evidence of a degree of " contumacy " envisaged in the case law as founding an order for imprisonment.

80. Such defiance of the authority of the court is totally unacceptable and deserves quite severe punishment. However, I see little point in short term incarceration in circumstances where the order's observance is to be secured in another appropriate way. The court should not await a possible change of heart by Sawyer as a result of imprisonment in order for the subject matter to be rectified. The court's focus must be obedience to the order, and a deterrent message to the community that orders must be obeyed by citizens, or the objectives of orders will be achieved by assertion of authority and the citizens will be punished severely for their disobedience.

81. I will, therefore, convict Sawyer of contempt of the orders made in 40015 on 10 May 2000 and impose a fine of $25,000, plus $2,500 per day, from and including today, until the said orders of the court have been complied with, such fines to be payable within 21 days of their respective imposition.

82. I make the notations and declarations set out on the first page of the "Draft Order" of the document filed on 26 July 2000 by the applicant, and initialled and dated by me today, and the formal orders will be as follows.

83. The court orders that: 1. The respondent, Christopher Sawyer, is found guilty and convicted of contempt of the orders made by the court on 10 May 2000. 2. The respondent, Christopher Sawyer, is fined $25,000, payable within 21 days of today's date, plus daily fines of $2,500 per day from and including today, payable within 21 days of the days on which such penalties are incurred. 3. The respondent, Christopher Sawyer, is ordered to pay the Applicant Council's costs incurred since 13 July 2000 on an indemnity basis. 4. All exhibits are to be retained in the court file.

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