Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 (12 May 2015)

Last Updated: 2 June 2016

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE

[This headnote is not to be read as part of the judgment]

Robert Rumble and Lee Rumble (the applicants) owned a used car business in Quirindi. Cars and motor vehicle parts were stored on a property on the outskirts of Quirindi owned by Mr Rumble. In 2013 the Liverpool Plains Shire Council commenced proceedings in the Land and Environment Court seeking orders that the applicants remove the cars and parts from the property. In July 2013, Biscoe J issued orders to that effect, with an exception for the cars owned by the residents of the property. The applicants did not comply with the orders. On 19 February 2014, upon the Council’s motion, Pain J found that the applicants were in contempt of court, but adjourned the matter until 26 May 2014 when the applicants were convicted of contempt of court and continuing fines were imposed.

The applicants, six months out of time, sought leave to appeal from the orders of Biscoe J, alleging that the judge erred in finding that both applicants “owned and occupied” the property, whereas Mrs Rumble neither owned it nor lived there. They sought to challenge their convictions for contempt on the grounds that, (i) Biscoe J’s orders were not served on them properly and, (ii) Pain J erred in finding that the business was run at the property. The applicants also challenged the constitutional validity of laws establishing local government in NSW and the Council’s powers to restrain use of private property; they asked that the constitutional matters be referred to the High Court.

Per Basten JA (McColl JA agreeing in her separate reasons)

(1) The extension of time for Mrs Rumble to appeal from the judgment of Biscoe J was not warranted because, although Mrs Rumble did not own the property, she had access to it and ownership of the vehicles on it, and she used it in an unlawful way as an owner of the business. [91]-[94]; [107]-[108].

Ross v Lane Cove Council [2014] NSWCA 50.

(2) As the Council was, in a practical sense, put on notice within time of an intention to appeal against the orders of Pain J, the applicants should be granted an extension of time within which to file and serve their summons seeking leave to appeal against those orders. [121].

(3) Once an order is made, the liability of the person subject to the order depends on the judicial order and not its legal basis. As such, even if the orders of Biscoe J had been set aside, the failure to comply with them while they were on foot constituted a contempt and the challenge to the orders of Pain J should be rejected. [114]-[118].

State of New South Wales v Kable [2013] HCA 26; 252 CLR 118; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435; Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396; Ross v Lane Cove Council [2014] NSWCA 50.

(4) No legal argument was disclosed by the appellants to impugn the constitutional basis or validity of the Local Government Act. [130]-[133].

Municipal Council of Sydney v The Commonwealth [1904] HCA 50; (1904) 1 CLR 208.

Per Beazley P (dissenting)

(1) It is of central importance to the proper functioning of the rule of law and the effective administration of justice that orders of the court are, and are treated as, valid until set aside. The Court’s authority in this respect is maintained by the power to punish for contempt for failing to obey a court order. [60]-[62].

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161CLR 98; State of New South Wales v Kable [2013] HCA 26; 87 ALJR 737; Papas v Grave [2013] NSWCA 308.

(2) In making his orders, Biscoe J proceeding upon a wrong understanding of the facts as to Mrs Rumble’s ownership and occupation of the property, and failed to determine the extent to which Mrs Rumble was responsible for the cars being stored on or near the premises. Those orders carried the possibility of significant consequences. As such, Mrs Rumble should be granted an extension of time with which to appeal against them and the appeal allowed. [69]-[70].

(3) Given the importance of the principle referred to in (1), Mrs Rumble’s appeal against the orders of Pain J should be dismissed. However, by reason of her lack of awareness of the consequences of failing to comply with the order, and the failure of the Council to direct a number of its orders to her, Mrs Rumble should be relieved of the consequences of the penalties imposed. [71]-[72].

(4) The factual errors of Biscoe J do not relate to Mr Rumble and, as such, there is no basis for setting aside the orders of Biscoe J or the contempt finding of Pain J as against him. However, given Mr Rumble’s remorse and his genuine but ineffectual attempts to seek to invoke the processes of the Court to seek a stay of the orders, it is appropriate that the penalty imposed by Pain J be set aside. [73]-[80]

JUDGMENT

1. BEAZLEY P:

Introduction

2. The proceedings before the Court relate to proceedings in the Land and Environment Court. On 25 July 2013, orders were made by Biscoe J restraining Robert and Lee Rumble from using land owned by Mr Rumble (the premises) and the adjacent road reserve for the storage of motor vehicles and motor vehicle parts. The Rumbles failed to comply with those orders and Liverpool Plains Shire Council (the Council) sought to have them dealt with for contempt. On 19 February 2014, Pain J found that each had been in contempt of the Court’s orders. On 26 May 2014, her Honour convicted each for contempt and imposed penalties on them.
3. Mr and Mrs Rumble appeal to this Court pursuant to the Land and Environment Court Act 1979 (NSW), s 58 against the orders made against them. They seek that the orders made by Biscoe J, their convictions for contempt by Pain J and the resulting penalties imposed by Pain J be set aside.
4. Mr and Mrs Rumble did not have legal representation in the three hearings in the Land and Environment Court or in the appeal proceedings in this Court. Nor did Mr and Mrs Rumble appear at the hearing before Biscoe J or the hearing before Pain J on 19 February 2014. Both hearings were held in Sydney. The first and only appearance by Mr and Mrs Rumble in the Land and Environment Court was at the 26 May 2014 hearing conducted at Quirindi by Pain J for the purposes of determining the seriousness of the contempt and the penalty that ought to be imposed. In this Court, Mr and Mrs Rumble appeared by telephone.

The Land and Environment Court proceedings

5. The proceedings in the Land and Environment Court gave rise to three separate judgments: Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 (Biscoe J’s judgment); Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13 (Pain J’s contempt judgment); and Liverpool Plains Shire Council v Rumble (No 3) [2014] NSWLEC 139 (Pain J’s penalty judgment).

Proceedings before Biscoe J

6. The proceedings heard by Biscoe J were commenced by summons filed in March 2013 in which the Council sought orders that Mr and Mrs Rumble remove or cause to be removed the vehicles and parts from the premises and that they be restrained from using the premises in contravention of the Liverpool Plains Local Environmental Plan 2011 (the LEP).
7. The summons was supported by an affidavit of Stephen Ryder dated 13 May 2013. Title searches of premises annexed to the affidavit revealed that the land was registered in the name of Mr Rumble.
8. In support of the order that Mr and Mrs Rumble be restrained from using the premises in contravention of the LEP, Mr Ryder also deposed to undertaking a search of Council records in which the only relevant development application in respect of the premises “was submitted on 28 July 2005 and accompanied by a letter from Robert Rumble”. Mr Ryder annexed to the affidavit a copy of the development application and accompanying letter.
9. The development application was for the construction of a front fence at a height of 1.8 m. The application was in the sole name of Robert Rumble and in it Mr Rumble identified himself as the owner of the property. In the accompanying letter, Mr Rumble stated “we wish to include temporary storage of 20 vehicles as described in letter for maximum of 12 months please, also the permanent storage of 10 motor vehicles”. He was the only signatory to the letter.
10. The development application was approved subject to conditions. In the development consent, Mr Rumble was identified as the owner of the property, consistent with the terms of the application.
11. Also annexed to Mr Ryder’s affidavit evidence were copies of the following documents:
    • (1) Notice of intention to serve an order under the Environmental Planning and Assessment Act 1979 (NSW), Pt 6, Div 2A, s 121B, dated 16 December 2008.
    • (2) Order under the Environmental Planning and Assessment Act, Pt 6, Div 2A, s 121B issued on 22 December 2008 against Mr Rumble, requiring him to cease using the premises as an unapproved car yard and to have all vehicles removed from the premises.
    • (3) Order under the Environmental Planning and Assessment Act, Pt 6, Div 2A, s 121B issued on 30 July 2009 against Mr Rumble, requiring him to cease using the premises as a second hand car yard and to have all unregistered vehicles removed from the premises and surrounding area.
    • (4) Notice dated 5 August 2009 of “Orders and intention of orders being served on you”, addressed to Mr and Mrs Rumble, stating:

“Council is reiterating the intention to serve orders upon yourselves regarding the use of [the premises] for the storage of vehicles and repairs without Development consent.

Please find attached the Intention to Serve Order documentation.

You have until Tuesday 11 August 2009 at 4.00pm to make an appeal to the General Manager, Mr Robert Hunt.

Should you require further information please contact the undersigned ...”

(5) Order under the Environmental Planning and Assessment Act, Pt 6, Div 2A, s 121B, issued on 12 August 2009 to Mr Rumble requiring him to cease using the premises as a second hand car yard and to have all unregistered vehicles removed from the premises and surrounding area.

(Notices and orders in (2)-(5) above contained erroneous references to s 121 of the Environmental Planning and Assessment Act. These references clearly should have been to s 121B.)

12. Mr Ryder, at para 6(a) of his affidavit, stated that the notice of intention to serve an order dated 16 December 2008 referred to at (1) above was issued to Mr and Mrs Rumble. That statement was incorrect. The annexed notice reveals that it was issued to Mr Rumble only. On the evidence before the Court, the only notice directed to Mrs Rumble was that identified in (4) above. Mrs Rumble was not subject to any of the orders made by the Council under s 121B.
13. Mr Ryder stated, at para 6(f) of his affidavit, that:

“Council took steps to enforce the orders by removing vehicles from the Rumbles property on 13 and 14 August 2009 ...”

That statement is incorrect insofar as it referred to “the Rumbles property”, if that statement was intended to refer to the legal ownership of the property.

14. There was also annexed to the affidavit photographs taken of the premises on 25 January 2010, 5 December 2011, 20 September 2012, 25 October 2012 and 8 May 2013.
15. Mr Ryder concluded his affidavit at para 13, in which he stated:

“It is my observation that there are currently approximately the same number of vehicles on the Rumbles property and surrounds as at any time as shown in the annexed photographic record. I would estimate that there would be approximately 150 or more vehicles inside the boundaries of the property based on the photographs and my observations, and at various times between 40 to 50 vehicles parked in the road reserve at the front of the Rumbles property.”

16. The Council tendered a number of documents in the proceedings. Exhibit A was a letter from Moray & Agnew, the solicitors for the Council addressed to Mr and Mrs Rumble at the South Street address. It was headed “FINAL NOTICE BEFORE PROCEEDINGS COMMENCED” and included the following:

“Unlawful storage of Vehicles

As you are aware for some time now you have adopted a practice of storing large numbers of motor vehicles and their components on your abovementioned residential property.”

17. The letter referred to the provisions of the LEP affecting the land and continued:

“Accordingly it is evident that unauthorised activities are being conducted at your premises without the necessary and required approvals pursuant to the provisions of the Environmental Planning & Assessment Act 1979, Environmental Planning & Assessment Regulation 2000 and the Local Government Act 1993.”

18. Reference was then made to proceedings Mr and Mrs Rumble had successfully brought in the District Court against the Council for trespass (the District Court judgment). The letter set out the following from those proceedings:

“We note that in his judgment Mahony DCJ noted:

‘9. Both plaintiffs deposed that they thought the development application granted by the Council was not only for the erection of a fence, but for the storage of vehicles as well. That is not borne out by the development application which is Exhibit RGR02 (Judge's Bundle p 461), which clearly shows approval granted for the proposed development of "fence only".’

His Honour also found:

‘73. By 30 July 2009 Mr Rumble had stored on the property over 100 vehicles (T148.38). He knew that he had not ever had permission or consent from the Council to store that many vehicles in his backyard (T148.42).’

The transcript reference to which His Honour refers is as follows:

‘Q. You had sought by way of your letter to the council when you put in the application in July 2005 for permission to store some 20 vehicles for a maximum of 12 months, didn’t you?

A. Yeah, that was correct at that particular point in time. Yes.

Q. But there was never any permission even to do that, I suggest, but in any event, you, certainly by July 2009, had more than 20 vehicles in the back of your property, didn’t you?

A. Yes.’

His Honour also found:

‘135. The plaintiffs took advantage of the Council's dilatory approach to zoning law compliance, by storage of a large number of vehicle wrecks and vehicle parts on their property which they knew was zoned residential. There was no basis whatsoever for them holding a belief that they could store an unlimited number of vehicles on that property for an unlimited period of time. They had undertaken, in June 2005, to temporarily store 20 vehicles for a maximum of 12 months only.’”

19. The Council also tendered in the proceedings before Biscoe J a notice to admit facts and authenticity of documents: Exhibit C. There was no response to that notice, such that the facts alleged were, by operation of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 17.3-17.4, taken to have been admitted. In the notice, the Council sought, inter alia, an admission that Mr and Mrs Rumble were occupiers of the premises. However, as the notice was, in its terms, addressed to the first respondent only, the failure by Mrs Rumble to respond could not be used as evidence of an admission by her. The Council acknowledged this to Biscoe J.

Biscoe J’s judgment

20. On 25 July 2013, Biscoe J made orders requiring Mr and Mrs Rumble to move or cause to be moved all vehicles and vehicle components from the premises and the road reserve adjacent to and nearby the premises. The order excluded roadworthy vehicles registered in the names of residents of the premises and used for their personal purposes.
21. His Honour also ordered that Mr and Mrs Rumble be restrained from using the premises in any way that: (a) fell within the definition of “commercial premises”, “transport depots”, “vehicle body repair workshops”, “vehicle repair stations” and/or “waste or resource management facilities” as defined in the LEP; or (b) was not in conformity with the zoning of the premises “R1 General Residential” pursuant to the provisions of the LEP.
22. The reasoning behind the orders made by Biscoe J was based on Mr and Mrs Rumble’s joint ownership of and occupation of the premises. This is apparent from his Honour’s reasons at [1], [2] and [3]. At [1], his Honour referred to the proceedings as being civil enforcement proceedings in which the Council sought to restrain Mr and Mrs Rumble:

“... from using land they own and occupy ... and the adjacent road reserve for purposes that are unlawful under the Liverpool Plains Local Environmental Plan 2011 (LEP).”

23. At [2], his Honour made a reference to the “respondents’ land”. At [3], his Honour stated that:

“For some years, the respondents have used the land ... and the adjacent road reserve to store motor vehicles ... to repair, sell and service motor vehicles; to sell spare parts for motor vehicles; and for incidental activities.”

24. It is not immediately apparent how his Honour’s error as to the ownership of the premises came to be made. The title search in evidence showed otherwise, as did Fact 3 in the Notice to Admit Facts, admitted by Mr Rumble’s failure to respond to the notice. In addition, the Council, in the hearing before his Honour, referred to Mr Rumble as the owner of the premises. It may be that notwithstanding these clear references to Mr Rumble as the sole owner of the property, his Honour’s focus was on the orders sought in the summons against both Mr and Mrs Rumble, a focus perhaps encouraged by the inaccuracies in Mr Ryder’s affidavits. Nonetheless, the first three paragraphs of his Honour’s reasons clearly made an erroneous reference to the ownership of the property and it appears that the Council at no time directed the court’s attention to the error, or took steps to have the error rectified.
25. His Honour, at [6], noted that none of the matters to which he had referred appeared to be disputed by Mr and Mrs Rumble except for their assertion in documents delivered to the Court that they have cats to keep down the rats and mice, and dogs to keep away intruders. His Honour then stated, at [7], with reference to those documents that “[a]lthough it is unnecessary to consider them because they have not been tendered in evidence” he understood the Rumbles to raise two matters. The first was their belief that they had a right to do what they wanted on their land, provided they did not infringe on similar rights of others. The second was an assertion that they were not subject to the laws of New South Wales.
26. As I have already indicated, there was no evidence before Biscoe J of Mrs Rumble’s ownership or occupation of the premises, or her co-ownership of the business, or her participation in the use of the premises as a second hand car yard, except to the extent that Mr Rumble used the plural “we” in his letter accompanying the development application. That is not sufficient to identify Mrs Rumble as a co-owner of the premises or of any business conducted on the premises. As the Council accepted before his Honour, the default admission by Mr Rumble in failing to respond to the Notice to Admit Facts was not an admission by Mrs Rumble and could not be used against her. This left the Council without any evidence to support its allegation that she was in occupation of the premises at the time of the hearing before his Honour or that she had been responsible for storing the vehicles on the property. Indeed, even assuming its admissibility, the finding in the District Court proceedings was that Mr Rumble had stored vehicles on the property. However, it is likely that the findings in those proceedings were not admissible: see the Evidence Act 1995 (NSW) s 91. In addition, contrary to the assumption that appears to have been made by his Honour that Mrs Rumble was the subject of orders made by the Council pursuant to the Environmental Planning and Assessment Act, s 121B, that was not the case: see [10] above.
27. Mr and Mrs Rumble did not appeal from the orders made by Biscoe J within the time prescribed by UCPR, r 51.8 for filing an appeal or otherwise seek to have the judgment reviewed pursuant to UCPR, r 36.16, having regard to the factual errors in Biscoe J’s reasons.

The contempt proceedings

28. The Council commenced contempt proceedings against Mr and Mrs Rumble by notice of motion dated 20 November 2013. The proceedings were regularly commenced in accordance with the Supreme Court Rules 1970 (NSW), Pt 55 and the Land and Environment Court Rules 2007 (NSW), Pt 6, r 6.3. The contempt proceedings were heard by Pain J on 19 February 2014.
29. In support of the application that Mr and Mrs Rumble be dealt with for contempt, Mr Ryder swore an affidavit dated 18 December 2013. He also gave oral evidence. There was also evidence adduced as to service of the relevant court documents.
30. In his affidavit, Mr Ryder annexed photographs depicting the state of the property and the nearby road reserve at various times subsequent to the making of the orders by Biscoe J on 25 July 2013. At para 10 of the affidavit, Mr Ryder stated that:

“On or about 12 September 2013 I became aware that the Rumbles filed a motion in these proceedings seeking an extension of time to comply [with] the Court’s orders.”

31. At para 13 of the affidavit, Mr Ryder stated:

“On or about 20 September 2013 I became aware that the Council offered [the applicants] a proposal in respect of [the applicants’] motion whereby should [the applicants] withdraw the motion the Council would not take any action in respect of the Court’s orders if those orders were complied with by 22 October 2013. To the best of my knowledge and belief there was no response by [the applicants] to the proposal and their motion was subsequently dismissed.”

32. It is not apparent from this evidence the extent to which Mrs Rumble was involved in the bringing of the notice of motion or whether the proposal made by the Council was made to her personally as well as to Mr Rumble. It should be inferred, however, consistent with the fact that Mrs Rumble has included herself as a party in the various proceedings the Rumbles have brought before this Court, that she was a party to the notice of motion.
33. I do not consider, however, that there is evidence from which to infer that the letter containing the Council’s proposal was received by her. I would only comment that it is most unfortunate that Mr Rumble neither proceeded with the notice of motion nor took up the Council’s proposal. The same is to be said of Mrs Rumble to the extent that she was involved in the notice of motion or received the Council’s proposal. Had they done so, it is possible that they would not now be in the serious position in which they find themselves, having been convicted of contempt.
34. At the commencement of the hearing before Pain J, the legal representative for the Council informed her Honour that a notice of intention to appeal had been filed but an appeal had not been filed.
35. The Rumbles did not file evidence in the proceedings, which, as noted, proceeded ex parte before her Honour. However, they did forward to the court a Court Book which contained the following documents: a reply; an objection to statement of charge; a medical certificate; the District Court judgment and a copy of the orders made by Biscoe J. The Council tendered the Court Book.
36. The Reply was on Form 8 which is the form of document to be filed in response to a defence: see UCPR, r 14.1. The objection to the statement of charge was on Form A which is a generic court form. The appellants stated in that document, which both signed, that the statement of charge was an abuse of process: see Pt 13, r 13.4. The Rumbles asserted in the objection to the statement of charge:

“9. We do not and have never run the business out of South Street why would we when we have a business premises in Henry St ... as they are aware of that fact, the reason the cars and parts were on south street was because of limited storage at Henry street and council were and are aware of that fact but it seems they would just rather our business be closed down altogether ...

11. We ask the court to please help us to stop this council from taking more of our personal possessions ...

12. If found that the order is going against us to remove things from our property then give us a decent time frame that we can work on so that we do not lose anymore of our possessions to this council please.”

37. In Pain J’s contempt judgment, at [18], her Honour observed that the principal matter to note from this material was:

“... an admission by the [Rumbles] in ... paragraph 9 that the reason for storing vehicles at the South Street property is because of limited storage space at their business premises in Henry Street ... This further supports the Council’s evidence in this matter.”

38. Her Honour noted that the matters raised in the Reply overlapped much of what was in the objection to the statement of charge, and did not consider that there was anything of relevance in it. Her Honour made no ruling as to the admissibility of the District Court judgment or of any finding in it, but stated, at [18], that the trespass proceedings against the Council “have no part to play in this matter”. I assume therefore that she paid no regard to any portion of the District Court judgment.
39. Earlier in the contempt judgment, at [10], her Honour noted that, at the court’s request, Mr Ryder had telephoned Mrs Rumble on the morning of the hearing and that she had told him that she was not coming to court because of health problems of which the court was aware and that she wished the court to move closer to her for a hearing. Her Honour observed that none of these matters had been notified to the Registry. Her Honour commented that this was an unsatisfactory state of affairs given that the proceedings before the court were contempt proceedings. Her Honour added:

“The [Rumbles’] behaviour is not consistent with an understanding of the seriousness of such a charge.”

40. Pain J found, at [21], that contempt of a court order had been proved that was “not merely technical”. Her Honour stood the matter over to:

“... provide one final opportunity for the [Rumbles] to come before the Court to explain their actions including their attempts to purge their contempt. I strongly suggest that they take up such an opportunity.”

The penalty proceedings

41. Both Mr and Mrs Rumble appeared before Pain J in the penalty proceedings and gave evidence. Mrs Rumble informed her Honour that they were “trying to comply” with the court orders.
42. Counsel for the Council informed her Honour that a notice of intention to appeal had been filed but no notice of appeal had been filed. The Council also referred to a notice of motion for a stay that had come before her Honour. Counsel reminded her Honour that she had considered that a stay was more appropriately a matter for the Court of Appeal given that an appeal was to be lodged. Counsel added that as no appeal had been lodged “there is no reason at all why this matter should not proceed today to finality”. Her Honour agreed unless “the Rumbles raise something about [the appeal]”. Her Honour was not expressly informed that the notice of intention to appeal had included a reference to an order for a stay.
43. Both Mr and Mrs Rumble gave evidence. Mrs Rumble gave evidence that she was in receipt of a disability support pension of $550 per fortnight and had no savings. She had separated from Mr Rumble in June 2012 when she moved out of the South Street premises. However, Mr Rumble and other members of the family remained living there. Mrs Rumble was a licensee under the Motor Dealers Act 1974 (NSW) of a car yard business conducted at different business premises in Quirindi that she owned jointly with Mr Rumble. The evidence suggested that the business was conducted in partnership. However, both Mr and Mrs Rumble gave evidence that she had not participated in the business since her separation from Mr Rumble.
44. Mrs Rumble informed her Honour that she believed she was able to get the premises cleared within a month and asked the court to provide her with that opportunity as a means of purging her contempt. In cross-examination as to her determination to get the property cleared, Mrs Rumble, as observed by her Honour, at [8] of the penalty judgment, “appears adamant that she will be able to encourage her family to remove all the relevant car vehicles and car parts in that time”. Her Honour also recorded that Mrs Rumble submitted that, despite her health problems, she was able to make arrangements for the clearing of the property.
45. Mr Rumble gave evidence that he had not realised the seriousness of the contempt and apologised to the court. He said that he had removed a number of vehicles from the property. He, too, said that he was sure that with the assistance of family members he would be able to clear the property in a month.
46. Mr Rumble also gave evidence as to the extent of Mrs Rumble’s continued participation in the business. The following questioning was conducted by her Honour:

“Q. So, Mrs Rumble gave evidence that she says she hasn’t been involved in the business since 2012.

A. That’s correct.

Q. So her name is still on the business?

A. It’s still on the registration of business name and on the dealer’s licence as a day to day manager if I needed one, but we just never worried about taking it off, that was all. I guess if she was on there and she was feeling up to it and I did need somebody to open the business and there legally, well then she’s allowed to do it.”

47. Both Mr and Mrs Rumble also gave evidence that they had thought that the orders made by Biscoe J were not binding, as there had been an amendment to the judgment after his Honour made his orders.
48. On 26 May 2014, Pain J imposed differential and continuing financial penalties on Mr and Mrs Rumble. The penalties imposed were as follows:

“1. Robert George Rumble is convicted of the charge of contempt as particularised in the statement of charge dated 20 November 2013.

2. Robert George Rumble is fined the sum of $10,000 to be paid to the Registrar of the Court within 28 days of today’s date.

3. Robert George Rumble is also fined $15,000 per calendar month so long as Robert George Rumble is in breach of the orders of the Court made on 25 July 2013.

4. Order 3 is suspended until 26 June 2014.

5. Lee Rumble is convicted of the charge of contempt as particularised in the statement of charge dated 20 November 2013.

6. Lee Rumble is fined the sum of $3,000 to be paid to the Registrar of the Court within 28 days of today’s date.

7. Lee Rumble is also fined $15,000 per calendar month so long as Lee Rumble is in breach of the orders of the Court made on 25 July 2013.

8. Order 7 is suspended until 26 June 2014.

9. 50 per cent of the amount of fines imposed are to be paid to the Council pursuant to s 122 of the Fines Act 1996.

10. Robert George Rumble and Lee Rumble are to pay the Council’s costs on an indemnity basis as agreed or assessed.”

The Court of Appeal proceedings

49. The orders made by Biscoe J which are under appeal were made pursuant to Class 4 of the jurisdiction of the Land and Environment Court: see the Land and Environment Court Act, s 20. Pursuant to s 58 of that Act, an appeal from Class 4 proceedings may be made to the Supreme Court. The appeal is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48.
50. Mr and Mrs Rumble filed a notice of intention to appeal on 24 February 2014, that is, five days after Pain J’s contempt judgment, in respect of the orders made by the court on 25 July 2013 and 19 February 2014. The document bears two court stamps, one indicating that the document was filed on 28 February 2014 and another indicating that the document was received on 3 March 2014. Nothing turns on the apparent inconsistency between those dates for present purposes, as the notice of intention to appeal was filed within the time prescribed by the rules in respect of Pain J’s contempt judgment. However, the notice was several months outside the time prescribed by the rules in respect of Biscoe J’s judgment: see UCPR, r 51.8.
51. The notice of intention to appeal also gave notice of an intention to seek a stay of the orders made on 13 March 2014 until the appeal was decided. This date presumably was a reference to the date of filing the summons in the Land and Environment Court. The correct reference should have been to the date of his Honour’s orders made on 25 July 2013. Notice was also given in the notice of intention to appeal of an intention to seek an injunction to restrain the Council from harassing Mr and Mrs Rumble and to raise a constitutional matter.
52. It should be noted that a notice of intention to appeal does not commence proceedings in the Court of Appeal. If a party decided to proceed with an appeal after filing a notice of intention to appeal, a notice of appeal must still be filed within the time prescribed by UCPR, r 51.9 – in effect, three months after the date of the decision to be appealed against. As the notice of intention to appeal does not commence proceedings, the reference in it to the application for a stay was also ineffective to invoke the Court’s jurisdiction to deal with a stay application. No steps were otherwise taken by Mr and Mrs Rumble to bring a stay application before the Court.
53. On 30 May 2014, the Rumbles filed a summons seeking leave to appeal from the decision of Biscoe J given on 25 July 2013 and the decision of Pain J given on 19 February 2014. They may have subsequently filed a further summons seeking leave to appeal which includes a reference to Pain J’s decision of 26 May 2014. I say “may have” filed, as the document in the appeal papers provided to the Court by the Rumbles does not bear a Court stamp.
54. Biscoe J’s orders were final orders from which leave to appeal was not required: Land and Environment Court Act, s 58; Supreme Court Act, s 48. The convictions for contempt and the penalty orders were made within those proceedings. There is nothing in the Supreme Court Act nor the Land and Environment Court Act that specifies that leave to appeal is required from a conviction for contempt or from the penalty imposed. If leave is required, it should be granted. It is a serious matter for a party to be convicted of contempt and as I explain, I consider that there were errors in the judgment of Biscoe J that were not noticed by Pain J and which may have had an impact on the outcome.
55. On 18 September 2014, Mr and Mrs Rumble filed a notice of motion seeking leave to adduce fresh evidence, including in respect of matters dating back to 2004; that the matter be heard in the High Court and the Judiciary Act 1903 (Cth), s 78B notice recognised as a High Court matter; and for an extension of time to appeal in respect of the first judgment.
56. Mr and Mrs Rumble each filed an affidavit dated 28 August 2014, much of which was inadmissible and parts of which were by way of submission. However, in para 8 of each affidavit, an order was sought that there be a stay of the orders made by Pain J on 26 May 2014 until the matter in the Court of Appeal was decided. Again, there was no formal initiation of a stay by notice of motion, as is procedurally required: UCPR, Pt 18, r 18.1.
57. The state of the court record indicates a poor understanding by the Rumbles of court processes. As is demonstrated by the fact that orders for contempt have been made, it is apparent that Mr and Mrs Rumble have served themselves particularly badly both by their inadequate understanding of court processes and by not having legal representation. Balanced against that was their use of court documents, indicating some understanding at least that there were processes that were required to be undertaken. Leaving that aside, one matter was clear from the material available and from Mrs Rumble’s statement at the hearing in this Court. Mrs Rumble could not understand how orders could be made against her or how she could be found to be in contempt and subject to penalties for failing to comply with the court’s orders when she did not own or occupy the property and was not actively engaged in the car yard business.
58. I did not understand Mrs Rumble’s confusion about this matter to be disingenuous. However, before dealing with whether her confusion should have any impact on the outcome of the proceedings insofar as Mrs Rumble is concerned, there are a number of matters to which it is first appropriate to refer.
59. At the time Pain J made the finding of contempt against Mrs Rumble and imposed penalties upon her, the orders made by Biscoe J remained extant and no stay of their operation or enforcement had been sought. To the extent that any reference was made to a stay, that did not occur until after the contempt finding was made against her, when the notice of intention to appeal was filed on 25 February 2014. The consequence was that a failure to comply with the orders made by Biscoe J constituted a contempt: see Rubie v Rubie [1911] HCA 71; 13 CLR 350 where Griffiths CJ, at 354, accepted that the following passage from Russell v East Anglian Railway Company [1850] EngR 870; [1850] 3 Mac & G 104 at 124 correctly stated the law:

“[T]he Court in administering punishment would attend to all the circumstances of the case, and amongst others, to the circumstances under which the order has been made, but ... that is not at all intended to impugn the general principle that is laid down, that an order once made by this Court must be obeyed. I can only understand the words ‘must be obeyed’ as meaning that if the order is not obeyed, the party shall be liable to punishment.”

60. It is of central importance to the proper function of the rule of law and the effective administration of justice that orders of the court are, and are treated as, valid until set aside. The court’s power to punish for contempt for failing to obey a court order is the means by which the court’s authority in respect of its orders is maintained. As the High Court stated in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98, at 107:

“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”

61. If a party wishes to dispute the correctness of an order made by the court, it is necessary to seek to have the order set aside, and for this purpose a party must invoke the processes of the court for the purpose of having a determination made as to whether an order was properly made: Papas v Grave [2013] NSWCA 308 at [70]. However, orders of the court must be treated as valid and enforceable until set aside. The rationale for this principle was explained by the plurality in State of New South Wales v Kable [2013] HCA 26; 252 CLR 118, at [39], as follows:

“Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.”

62. See similarly Papas v Grave at [69] per Emmett JA.
63. A court may alleviate the consequences to an individual of having to comply with a court order within a specified time frame by granting a stay pending an appeal: see Rubie v Rubie at 354.
64. Neither Mr nor Mrs Rumble complied with the orders made by Biscoe J. Whilst those orders remained on foot, compliance with them was required in accordance with their terms. This is so notwithstanding that there was an apparent error in his Honour’s judgment as to ownership of the property and, as I consider was the position, there was no evidence to support that Mrs Rumble was an occupier of the premises or responsible for the cars being on the property except to the extent that she had an ongoing interest in the car yard business.
65. That raises the following questions. The first is whether Mrs Rumble established a basis to set aside the orders made by Biscoe J as against her. If so, she requires an extension of time in which to appeal against those orders. The second question is whether, if the orders of Biscoe J as against her are to be set aside, Mrs Rumble has established a basis to set aside Pain J’s finding of contempt against her. If this second question is answered in the negative, there remains a third question as to whether Mrs Rumble ought to have been subject to any penalties as a result of her contempt. There is also the question whether Mr Rumble has established any basis for appellate relief.

Should the orders made by Biscoe J against Mrs Rumble be set aside?

66. If there is an inadequate basis for a court making an order, there are good reasons why the order should be set aside. I have come to the conclusion, for the reasons given above, that this is the case for the orders made against Mrs Rumble by Biscoe J. In coming to that conclusion, I have had regard to the fact that vehicles have been placed on the property from at least 2008. However, there was no evidence that these were the same vehicles as were on the property in 2013 when the orders were made, or, more relevantly, whether Mrs Rumble had any responsibility for vehicles being on the property from mid-2012 when she and Mr Rumble separated.
67. However, Mrs Rumble requires an extension of time in which to appeal against those orders. The Court may extend the time fixed by the rules of court: UCPR, r 1.12. The rule “is a remedial provision which confers on a court a broad power to relieve against injustice”: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268 at 283. However, sufficient reason for the grant of an extension of time needs to be demonstrated and a satisfactory explanation for the delay is usually required: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441. Where a party is seeking an extension of time in which to appeal, some prospects of success need to be established: Jackamarra (an Infant) v Krakouer [1998] HCA 27; 195 CLR 516.
68. The only matters advanced in support of an extension of time were that the orders were the basis upon which the contempt finding was made and Mrs Rumble’s belief that the amendment to his Honour’s judgment meant that the orders were not operative. The “amendment” was noted in an edit at the end of his Honour’s judgment in respect of the removal of “field codes”. However, as was explained to Mrs Rumble in the course of the hearing of the appeal, this was a technical matter and had no effect on the orders made by his Honour. There had been no amendment to the record of the court’s orders. Mrs Rumble’s reliance upon this factor was a serious misconception by her.
69. For the reasons given, Biscoe J, in making orders against Mrs Rumble, proceeded upon a wrong understanding of the facts and failed to determine the extent to which Mrs Rumble was responsible for the cars being stored on or near the premises. The orders carried the possibility of significant consequence. Mrs Rumble was at risk of being subject to severe penalties, by way of both a fine and imprisonment, depending on the court’s assessment as to what penalty was warranted, if found to be in contempt of them.
70. As it turned out, the court imposed penalties by way of a fine. However, a conviction for contempt is by itself a most serious matter and the financial consequences of the imposition of penalties are far from insignificant. As Emmett JA explained in Papas v Grave, the appropriate way to avoid those consequences is to apply to the court to have the order set aside. Mrs Rumble, belatedly, has done so. In that circumstance, I would grant an extension of time to appeal against the orders of Biscoe J as against Mrs Rumble and allow that appeal.

Should the contempt finding or the penalties imposed by Pain J against Mrs Rumble be set aside?

71. Having set aside the orders of Biscoe J as against Mrs Rumble, two possible courses suggest themselves. One is to quash the finding of contempt by Pain J as against Mrs Rumble and set aside the penalty orders made against her. However, that course would fail to give effect to the fundamental principle to which I have referred, that a court order, once made, must be obeyed, unless stayed by court order. Although Mrs Rumble exhibited some confusion over the amendment to the judgment, she also exhibited a tendency to ignore the court’s orders and to find matters about which to quibble. The second course is to dismiss Mrs Rumble’s appeal against Pain J’s finding of contempt but relieve her from the consequences of the penalties her Honour imposed.
72. Such is the importance of the principle that a court order is to be obeyed, I consider that this is the appropriate approach. In taking this approach, I recognise that it reflects significant leniency towards Mrs Rumble’s conduct. However, I consider it to be justified in the circumstances, particularly having regard to the observation of Pain J, at [21] of her penalty judgment, that she considered Mrs Rumble “[was] probably not as aware as [she] should have been of the consequences of failing to comply with a court order”. I also note that Mrs Rumble was not the subject of the various orders made by the Council pursuant to the Environmental Planning and Assessment Act, s 121B, so that whilst her failure to comply with Biscoe J’s orders was serious, it did not carry with it the egregiousness and serious disregard of lawful authority that would follow had there been a history of failure to comply with s 121B orders. In those circumstances, I would not impose a penalty upon her.

Should the orders of Biscoe J and Pain J against Mr Rumble be set aside?

73. Mr Rumble did not establish that there was any error in the orders made against him, save for the challenges relating to the validity of local government legislation on constitutional grounds, the powers of Council to place any restraint on his use of the premises and the appropriateness of the zoning of the premises. For the reasons given by Basten JA, those matters do not provide a basis for setting aside the orders of Biscoe J as against him, or for setting aside the finding of contempt found by Pain J.
74. The question then is whether any basis has been made out for setting aside or otherwise modifying the penalty imposed by her Honour on Mr Rumble. I have not found error in the level of penalty imposed by Pain J. However, Mr Rumble has twice sought a stay of orders, albeit that he did so ineffectively on each occasion, as neither attempt was in accordance with the Court’s formal processes. The first attempt was in the notice of intention to appeal filed on 25 February 2014, prior to the penalty hearing, and the second in his affidavit filed in this Court dated 28 April 2014. Pain J was satisfied that Mr Rumble did not fully understand the consequences of not obeying a court order. Her Honour, at [23], also accepted Mr Rumble’s expressions of contrition, although she did refer to the “history of not very contrite behaviour leading up to” the hearing before her on 26 May 2014. It is also relevant that Mr Rumble has not had legal representation in any of the proceedings.
75. Mr Rumble’s serious breach of the court’s orders and his inept utilisation of the processes of the court raises, in my mind, a certain tension. The power to punish contempts of court rests, as explained above, on rule of law considerations. In Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (No 2) [2009] FCA 650, Tracey J explained, at [11]:

“The power to punish contempts serves the purpose of disciplining the defendant and vindicating the authority of the court ... it is the means by which the law vindicates the public interest in the due administration of justice ... and is the way in which the Court preserves respect for its role and the rule of law ...” (citations omitted)

76. A key aspect of the rule of law is the importance of respect for the institution charged with the responsibility of interpreting and applying the law. Compliance with court orders is the means by which those to whom they apply demonstrate that institutional respect. Disagreement with court orders does not of itself indicate a lack of institutional respect. However, the legal system, through the appellate process, provides the means for the regular challenge of such orders. These processes are themselves underpinned by the essential requirements of procedural fairness. In turn, fair treatment through court processes engenders respect for the institution whose responsibility it is to apply the law.
77. Those who use court processes have a corresponding obligation to ensure that they do so with due regard to their obligations to the court. In the present matter, the Council, in its intended lawful and appropriate use of the court process, failed, in Mrs Rumble’s case, to ensure that accurate information was placed before the court. The consequences for Mrs Rumble have been most serious. The essential reason why I consider that she should be entitled to relief is because the Council failed to properly prove its case against her and failed to bring to the attention of the court the errors in the judgment to which I have referred.
78. The position with Mr Rumble is different. The factual errors made in the judicial process in respect of Mrs Rumble did not extend to him. Mr Rumble has demonstrated himself to be both obdurate and recalcitrant in understanding and complying with the planning laws that govern his use of the premises. However, as Pain J accepted, once coming to an appreciation of the seriousness of his conduct and the lawfulness of the Council’s requirements in relation to the premises, he was found to be remorseful. Importantly, from my perspective, Mr Rumble had made attempts to engage the processes of the Court which, had they been regularly invoked, may have had an impact on the outcome. A stay may or may not have been granted by the Court had Mr Rumble properly utilised its processes. However, what I accept to be a genuine misunderstanding of court processes has been to Mr Rumble’s serious disadvantage. It is worth commenting however, that Mr Rumble’s failed attempts to correctly engage court processes are not unique to him. Experienced practitioners not infrequently fail to properly utilise the rules of the court and court processes although the Court does not always look favourably upon those failures.
79. The Council’s position is not to be overlooked in this discussion. It too, as the prosecutor of the proceedings is entitled to a fair outcome. It was apparent from the material before the Court that its attempts to regularly enforce its planning laws over a lengthy period of time had come to nought. It may well feel a sense of frustration should any leniency now be afforded by the Court to Mr Rumble. The reaction would not be unreasonable. However, the Council is a body corporate. Mr Rumble is an individual with a poor understanding of the law and legal processes. For the reasons already given, the Council, with professional staff and legal representatives, failed to ‘get everything right’ in its conduct of the proceedings. Indeed, as noted at [11], even the orders made under s 121B were wrongly stated to have been made under s 121. Nothing turned on that in the proceedings and the only point I seek to make about it is that even a resourced and legally advised entity does not always accurately navigate procedural aspects of the legal system.
80. Taking into account all of these matters, I consider, on balance, but barely so, that the tension to which I have referred should resolve itself on this occasion in favour of Mr Rumble, given the findings made by Pain J of his apparently changed attitude. This is an exceptionally lenient approach to Mr Rumble’s conduct and should not be taken as a benchmark for other cases. However, I consider that the circumstances to which I have referred, and in particular the notification in the notice of intention to appeal to seek a stay, are such that it is appropriate to further suspend the operation of the penalties imposed by her Honour on Mr Rumble for another period of one month from the date of this judgment. I would otherwise dismiss the appeal against the orders and fines imposed by her Honour as against Mr Rumble.
81. I would add and stress that Mr Rumble should have no continuing misapprehension as to the need to comply with the court orders and, even more so, should have no misapprehension of the seriousness of the contempt of court should he fail to do so.
82. As suspending the operation of Pain J’s orders will involve a variation of her Honour’s orders insofar as Mr Rumble is concerned, his appeal should be allowed in part and there should be a consequential apportionment of costs.
83. Accordingly, the orders I propose are:

(1) Extend to Robert and Lee Rumble the time in which to appeal against the judgment and orders of Biscoe J made 25 July 2013 to 22 September 2014.

(2) Set aside the orders made by Biscoe J made 25 July 2013 insofar as those orders are made against Lee Rumble.

(3) Order that the summons filed by the Council in Land and Environment Court proceedings 40202/13 be dismissed as against Lee Rumble.

(4) Extend the time in which to file a summons for leave to appeal from the judgment and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 19 February 2014 and 26 May 2014 to 30 May 2014.

(5) Grant leave to Robert and Lee Rumble to appeal against the judgments and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 19 February 2014 and 26 May 2014.

(6) Dismiss the appeal of Lee Rumble against the judgment and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 19 February 2014.

(7) Allow the appeal of Lee Rumble against the judgment and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 26 May 2014.

(8) Set aside the judgment and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 26 May 2014 as against Lee Rumble, being orders (5), (6), (7), (8), (9) insofar as those orders apply to Lee Rumble and (10), insofar as that order is made against Lee Rumble.

(9) Dismiss the notice of motion dated 20 November 2013 filed in Land and Environment Court proceedings 40202/13 as against Lee Rumble.

(10) Dismiss the appeal of Robert Rumble against the judgment and orders of Biscoe J made 25 July 2013 in Land and Environment Court proceedings 40202/13.

(11) Allow in part the appeal of Robert Rumble against the judgment and orders of Pain J in Land and Environment Court proceedings 40202/13 dated 26 May 2014.

(12) Vary the orders made by Pain J in Land and Environment Court proceedings 40202/13 dated 26 May 2014 as follows:

(a) In order (2) substitute for the words, “within 28 days of today’s date” the words, “within 28 days of 12 May 2015, being the date of today’s orders”.

(b) In order (3) substitute for the words “26 June 2014”, the words “12 May 2015”.

(13) Order Mr Rumble to pay 25 per cent of the Council’s costs of the appeal.

84. McCOLL JA: The respondent, Liverpool Plains Shire Council, commenced Class 4 proceedings in the Land and Environment Court seeking to restrain the applicants, Robert George Rumble and Lee Rumble, from using land at 69 South Street, Quirindi and an adjacent road reserve for purposes which were unlawful under the Liverpool Plains Local Environmental Plan 2011 (the “LEP”).
85. The applicants jointly conducted a used car yard at 73 Henry Street Quirindi. They used the land at 69 South Street and the adjacent road reserve to store motor vehicles and for other activities ancillary to the Henry Street business. The land at South Street and Henry Street was zoned R1 General Residential. Under the LEP the uses to which the South Street land was put were prohibited, save that some uses may have been permissible with consent in certain circumstances not presently relevant as no development application had been made.^[1] The unlawful use of the land had caused substantial environmental harm.^[2] Biscoe J made orders requiring the applicants to remedy the unlawful use.^[3]
86. Over a number of years the Council unsuccessfully took extra-curial steps by writing to one or both applicants exorting them to redress the situation.^[4]
87. As Beazley P has explained, only one of various notices to which Biscoe J referred was formally addressed to both applicants. However the letter dated 6 February 2013 (exhibit A) to which her Honour refers^[5] was addressed to them both at the South Street property. It set out in detail the Council’s complaints about the recipients’ use of the property and the adjacent road reserve. It forewarned them of the Council’s intention to commence proceedings against them unless they undertook, in effect, to remedy the unauthorised use. It set out passages from the judgment of Mahony DCJ in Lee and Robert Rumble v Liverpool Plains Shire Council & Ors.^[6] It must have been apparent to the applicants that by referring to those passages in his Honour’s reasons the Council contended each of them was responsible, as his Honour had found, for storing large numbers of vehicles on the land in contravention of the LEP.
88. As at January 2014 Mrs Rumble swore an affidavit in which she gave the South Street property as her address. There is no reason to believe she was not forewarned of the Council’s intention to commence the proceedings.
89. The Summons commencing the proceedings also identified the South Street property as each applicant’s address. There is no controversy that they were aware of the proceedings.
90. As Biscoe J said,^[7] the applicants did not dispute the Council’s contentions that they used the land in the manner the subject of the complaint. Rather, they delivered documents to the court contesting the Council’s right to restrict what they did on “their land”, which they had constituted as “the Independent Sovereign State of Australia”.^[8]
91. The proceedings before Biscoe J were conducted on the basis both of ownership and occupation. It is apparent, as Beazley P has explained,^[9] that his Honour mistakenly referred to Mrs Rumble as owning the South Street land. However, his Honour’s orders were based on the use of the land, not mere ownership. On the basis of the history to which I have referred it was clearly open to his Honour to conclude both applicants had used the South Street property in a manner which was unlawful under the LEP. As such, his Honour’s orders were properly made.^[10]
92. The applicants do not dispute that they did not comply with those orders. Accordingly, it was open to Pain J to find, as her Honour did, that both applicants were guilty of contempt of court.^[11]
93. Finally, when the penalty proceedings came before Pain J, on which occasion the applicants attended court for the first time, Mrs Rumble, as Basten JA has explained, accepted that she continued to own the used car business, albeit that she contended she did not participate in its day to day operations. She also accepted she had access to the South Street land and was able to have the land cleared, an opportunity she asked the Court to extend to her, as a means of purging her contempt.^[12]
94. In all those circumstances, there is, in my view, no basis for setting aside Biscoe J’s orders, nor disturbing Pain J’s findings as to contempt and penalty.
95. For these, and for the reasons that Basten JA gives, I agree with the orders his Honour proposes.
96. BASTEN JA: This matter involves a summons seeking leave to appeal from three judgments of the Land and Environment Court. Whether or not leave is required, the applicants require an extension of time with respect to the first judgment. Because the final judgment imposed penalties on the applicants for contempt of court, including monthly fines continuing whilst the orders of the Court were not complied with, the applications were listed concurrently with the proposed appeals, in the event that those were reached.

Factual and procedural background

97. Prior to these proceedings, and at least since 2006, the applicants jointly ran a business at 73 Henry Street, Quirindi, from which they operated a used car yard, selling second hand motor vehicles and new and used parts. The applicant Robert George Rumble owned a separate property at 69 South Street, Quirindi. In early 2013 the present respondent, Liverpool Plains Shire Council, commenced proceedings in the Land and Environment Court, seeking orders requiring the applicants to remove all vehicles, including those which were partly or wholly disassembled, and all vehicle components, from the premises at 69 South Street, other than vehicles which were roadworthy and registered in New South Wales in the names of persons resident at those premises and used for their personal purposes.
98. The application came before Biscoe J in the Land and Environment Court on 25 July 2013. Biscoe J referred in his reasons to a history of non-compliance with Council directions over a period of some four years. The applicants did not appear before him, but did deliver to the Court registry a bundle of documents. Although the documents were not tendered in evidence, the judge read them in order to determine the issues sought to be raised. The documents did not contain any challenge to the factual evidence presented by Council and accordingly the judge made orders in the following terms:^[13]

“(1) The respondents are to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicles components) from:

(a) Lots 8 & 9 Section 30 DP 758863 known as 69 South Street Quirindi NSW (‘the premises’), and

(b) the road reserve adjacent to and nearby the premises

(other than those roadworthy and registered in NSW in the names of residents of the premises and used for their personal purposes) by 5.00pm on 30 August 2013.

(2) The respondents are restrained from using the premises in any way that:

(a) falls within the definition of ‘commercial premises’, ‘transport depots’, ‘vehicle body repair workshops’, ‘vehicle repair stations’ and/or ‘waste or resource management facilities’ as defined in the Liverpool Plains Local Environment Plan 2011, or

(b) is not in conformity with the zoning of the premises ‘R1 General Residential’ pursuant to the provisions of the Liverpool Plains Local Environment Plan 2011,

as and from 5.00 pm on 30 August 2013.

(3) The respondents are to pay the applicant's costs of the proceedings.”

99. The orders made by Biscoe J were entered on 6 August 2013 and served on 15 August 2013. (They were re-served on 3 September 2013 because the penalty notice attached to the orders had not been separately stamped with the Court seal.)
100. On 20 November 2013 the Shire Council filed a motion seeking orders that the applicants be punished for contempt of court for failing to comply with order 1 made by Biscoe J on 25 July 2013. That motion came on for hearing before Pain J on 19 February 2014. The applicants did not appear, although, again, they had filed material with the Court prior to the hearing. Pain J, being satisfied that the applicants had proper notice of the hearing, commenced her consideration of the contempt charge. After considering the evidence she reached the following conclusion:^[14]

“The contempt of a court order has been proved which is not merely technical. I will not make any finding of whether the contempt was wilful or, more seriously, contumacious as I will provide one final opportunity for the Respondents to come before the Court to explain their actions including their attempts to purge their contempt. I strongly suggest that they take up such an opportunity. If they wish to make application to the Court about how a further hearing should be conducted this can be done by approaching the Court registry as soon as possible.”

101. Despite the non-appearance of the applicants, Pain J, in the course of the hearing on 19 February, requested a Council officer to ring them. The officer apparently spoke with Mrs Rumble who said that “she did not intend to appear and cited health problems she said the Court was aware of and that she wished the Court to move closer to her for a hearing.”^[15] Having made the finding referred to above, Pain J then adjourned the matter to 26 May 2014, at Quirindi, where she sat to take final submissions as to the seriousness of the contempt and the appropriate penalty.
102. Both applicants appeared before Pain J at the adjourned hearing in Quirindi and gave oral evidence. At the conclusion of the hearing the judge delivered ex tempore reasons and made the following orders:^[16]

“(1) Robert George Rumble is convicted of the charge of contempt as particularised in the statement of charge dated 20 November 2013.

(2) Robert George Rumble is fined the sum of $10,000 to be paid to the Registrar of the Court within 28 days of today's date.

(3) Robert George Rumble is also fined $15,000 per calendar month so long as Robert George Rumble is in breach of the orders of the Court made on 25 July 2013.

(4) Order 3 is suspended until 26 June 2014.

(5) Lee Rumble is convicted of the charge of contempt as particularised in the statement of charge dated 20 November 2013.

(6) Lee Rumble is fined the sum of $3,000 to be paid to the Registrar of the Court within 28 days of today's date.

(7) Lee Rumble is also fined $15,000 per calendar month so long as Lee Rumble is in breach of the orders of the Court made on 25 July 2013.

(8) Order 7 is suspended until 26 June 2014.

(9) 50 per cent of the amount of fines imposed are to be paid to the Council pursuant to s 122 of the Fines Act 1996.

(10) Robert George Rumble and Lee Rumble are to pay the Council's costs on an indemnity basis as agreed or assessed.

103. On 28 February 2014, the applicants filed a notice of intention to appeal from the judgment of Biscoe J and the first judgment of Pain J delivered on 19 February 2014. The notice was not served until 10 April 2014. The judgment of Biscoe J was final and not interlocutory. The notice was six months out of time. A draft notice of appeal was not filed until August 2014, more than two months after the final orders made on the contempt charge.
104. During the hearing in this Court on 10 March 2015 enforcement of the orders made by Pain J was stayed pending determination of the proceedings in this Court.

Challenge to substantive orders

105. The first sentence of the first judgment (of Biscoe J) contained a factual error: it said that the Council sought to restrain “Robert George Rumble and Lee Rumble, from using land they own and occupy at 69 South Street, Quirindi ....” In fact, the title to the land was in the name of Robert George Rumble alone. Apart from certain generic grounds relating to the status of the Shire Council, the only complaint about this judgment is that “in 2013 [the Shire Council] were aware that Lee Rumble was not on the property title deed and that she no longer lived at 69 South Street, Quirindi”. The relevant question is not the knowledge of the Council, but whether in referring to Mrs Rumble as an owner, Biscoe J made a mistake which was material to his orders.
106. It is possible that the sentence was intended to be read distributively, namely that Mr Rumble owned the land and Mrs Rumble occupied it. Nevertheless, the parties approached the matter on the basis that there was a factual error, namely an incorrect assumption that both applicants were owners. This Court should adopt that approach.
107. The material before Biscoe J indicated that the property at 69 South Street was being used by the business, of which Mr and Mrs Rumble were joint owners, for storage of vehicles which could not be accommodated at the Henry Street premises of the business. Accordingly, it was entirely appropriate for an order to be made against both applicants.
108. The fact that Mrs Rumble did not own the land on which the offending vehicles were situated was immaterial. Any person who uses land for an unlawful purpose may be required to restore the land to its proper state. If that person is not the owner of the land, it will be necessary to ensure that the owner is a party to the proceedings, so as to be bound by the orders to allow a third person access to the land in order to remove the offending structure.
109. This point is illustrated by the recent decision of this Court in Ross v Lane Cove Council.^[17] Mr Ross was a builder: court orders required him to demolish unauthorised works and reinstate identified premises in accordance with the existing development consent. Mr Ross had been the registered proprietor of the land at an earlier point in time, but, by the time of the proceedings, the land had been sold to a third party. The trial judge, aware of the change of ownership, had made orders against Mr Ross on the basis that he had actively participated in the offending works and exercised control over them.
110. In this Court, consideration was given to the class of persons against whom an order could be made under s 124 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). Leeming JA stated:

[37] It was established by Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472 at [47]- [48] that ss 123 and 124 do not extend to making orders to remedy or restrain breaches against persons who are not themselves in breach, or threatening to act in breach, of the EP&A Act. The source of the restriction is the statutory description of the kind of order which may be made under ss 123 and 124: ‘an order to remedy or restrain a breach of this Act’. The reasoning of the primary judge at [82]-[84] was directed to this issue, and it was entirely appropriate for her Honour to reason in this manner.

[38] However, an order may be made against one defendant, whilst binding another. Very typically, a council will seek orders under s 123 against a builder carrying on unauthorised works on a property, and will sue both the owner and the builder. The builder may be required to demolish the unauthorised work. By joining the owner, the owner is (a) bound by the court's determination that the work is unauthorised and the exercise of discretion in ordering demolition and reinstatement, and (b) entitled to appeal from the orders. After all, the owner owns the land of which the unauthorised works form part.”

111. The point in that case was that the landowner could have been joined even if she had not been responsible for the breach of the EP&A Act. In the present case, the breach was the responsibility of those having control of the vehicles, and authority to place them on the land. Clearly those persons would include the owners of the business which owned the vehicles.
112. Accordingly, if the only basis for challenge to the orders of Biscoe J were that he mistakenly thought that Mrs Rumble was an owner of the property, the short answer is that it was ownership of the vehicles, with access to the property, which was the basis of her being a respondent in the proceedings and a proper subject of the orders. That challenge would not provide an arguable ground of appeal and would therefore not warrant an extension of time within which to appeal.
113. Further, the evidence given by Mrs Rumble before Pain J in Quirindi demonstrated that there could be no factual challenge to her joinder in the substantive orders. First, she acknowledged her continuing joint ownership of the business in 2013, although she said she was no longer engaged in its day-to-day operations. Further, she acknowledged she had access to the land and had authority to have the vehicles moved (the only question being as to means and timing). That evidence was summarised by Pain J as follows:^[18]

“She does not live at South Street Quirindi. She does jointly own the property at Henry Street Quirindi, where a car sales and spare parts business is conducted by Mr Rumble. She believes that she is able to get the property cleared within one month and urges the Court to give her that opportunity as a means of purging her contempt. Mrs Rumble was cross-examined about her determination to do so by the Council's counsel and appears adamant that she will be able to encourage her family to remove all the relevant car vehicles and car parts in that time.”

114. There is a further reason why leave should not be granted at this stage to reopen the substantive orders made in July 2013. It derives from the statutory conferral on the Land and Environment Court of the status of a “superior court of record”.^[19] Even if the proposed appeal were to be allowed and the orders set aside, the failure to comply with the orders whilst they were on foot would remain a contempt. As was explained in State of New South Wales v Kable:^[20]

“It is now firmly established by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that ... these principles did not apply equally to the judicial orders of a State Supreme Court.”

115. The joint reasons further stated:^[21]

“But, as has been explained, the effect which is given to the order made beyond jurisdiction comes not from the law which purported to confer the relevant jurisdiction but from the status or nature of the court making the order (as a superior court of record). The effect which is given to the order is for only so long as it remains in force. Once set aside on appeal, the order is spent.”

116. As the Court further explained, there is an underlying principle and an underlying policy supporting this conclusion. The principle is that once the order is made the liability of the person subject to the order depends on the judicial order and not the legal basis for the order. The policy is that to allow persons subject to the orders of superior courts to simply disregard the orders, despite the absence of a stay, on the basis that, if the orders are later set aside, they will not have been in contempt of court, would be entirely subversive of the place of court orders in the rule of law. The situation with respect to other courts and tribunals is entirely different: the failure to comply with an order of an inferior court made without jurisdiction cannot be a contempt of court.^[22]
117. This principle has been applied in Ross v Lane Cove Council, where Leeming JA noted that “it remains a contempt to disobey orders that are subsequently set aside.”^[23]
118. It follows that the outcome of any appeal from the substantive orders could not affect the liability of either applicant for contempt of court. Evidence of a bona fide and reasonable belief that the orders did not bind them for some reason might conceivably (despite the absence of a timely appeal or an application for a stay) affect the sentence. However, that effect would not depend upon the success or failure, or the non-existence, of an appeal against the substantive orders.
119. In these circumstances, given both the lack of merit and the lack of utility, the application for an extension of time within which to appeal from the orders of Biscoe J should be refused.
120. Before leaving the topic, it is desirable to note a complaint made by the applicants that the reasons for judgment had been amended after they were delivered. The apparent amendment, noted on the copy of the judgment uploaded to Caselaw, was no doubt meaningless to the applicants. Three paragraphs were identified with the amendments “removed field codes”. That amendment did not involve any variation of the reasons, let alone the orders. It was a technical matter removing an extraneous computer code inserted when a passage from an online document has been transferred into the judgment. When the point was explained, it appeared that the issue was abandoned, as it properly should have been.

Challenge to contempt findings and orders

121. With respect to the contempt charge, there was a notice of intention to appeal given following the first hearing and the findings made by Pain J on 19 February 2014. No orders having been made, an appeal could not have been brought at that time. The appeal in fact brought from the judgment of 26 May 2014 was not the subject of a notice of intention to appeal, but, if there had been a notice of intention, the appeal was filed within the relevant three month period. In a practical sense, the Council was put on notice of an intention to appeal against the final orders, by the premature indication of an intention to challenge the findings of contempt. The applicants should be granted an extension of time within which to file and serve the summons seeking leave to appeal until the date of service of the White Book on the Council (being 15 September 2014). The applicants are entitled to challenge the findings of contempt made on 19 February 2014 in challenging the final orders. As the Council accepts that the applicants had a right to appeal against the orders for contempt, no further grant of leave is required.^[24]
122. There is one procedural ground raised in the draft notice of appeal. It relates to the manner in which the orders of Biscoe J were served on the applicants. The problem arose because, although the copy of the orders served on the applicants on 15 August 2013 bore the Court seal, the penalty notice which accompanied them did not. It was for that reason that further copies of both documents, bearing the seal of the Land and Environment Court, were reserved on 3 September 2013. This issue was considered by Pain J in her first judgment: she was satisfied that the appropriate procedural steps had been taken.^[25] There was no basis to doubt that finding.
123. There was no challenge to the finding that there had been non-compliance with the substantive orders. The cars and parts had to be removed entirely (subject to the exception for cars owned by persons resident at the premises); the material relied on by the Council demonstrated beyond reasonable doubt that they had not been so removed.
124. Before this Court Mrs Rumble denied any responsibility for removing the vehicles saying, “I never had a responsibility, I just tried to help.”^[26] That of course was not so: the Court order said otherwise.
125. Mrs Rumble also submitted that the orders assumed (wrongly) that they were running a business from 69 South Street. That was consistent with her affidavit in this Court, which stated:^[27]

“We have never run the business out of 69 South Street the business premises address is 73 Henry Street Quirindi. The vehicles and parts are stored on 69 South Street as council has always been aware of a shortage of space at 73 Henry Street Quirindi. It was never a problem before and we both honestly believe council is being vindictive in their assertions to the court.”

126. This complaint was misconceived: Pain J made no finding that there was a business being run at 69 South Street: her finding was that there had been non-compliance with the substantive orders made by Biscoe J.
127. There was no other comprehensible basis of challenge to the orders made by Pain J on 26 May 2014.

Generic challenges

128. The grounds of appeal raised three other generic matters. The first involved an allegation that the property at 69 South Street was inappropriately zoned residential, it being surrounded by land zoned rural or industrial. The ground does not, however, suggest that the property was not in fact zoned residential and accordingly casts no doubt upon the correctness of the judgments in the Land and Environment Court.
129. Secondly, there was a challenge to the powers of the Shire Council to impose constraints on the use of land. Subject to consideration of the third matter noted below, that ground disregards the establishment of councils pursuant to Ch 9 of the Local Government Act 1993 (NSW), including the establishment of each as “a body politic of the State with perpetual succession and the legal capacity and powers of an individual”, pursuant to s 220. The functions of a council are also statutory.^[28] Functions with respect to environmental planning arise under the EP&A Act.
130. Thirdly, the applicants sought to raise a constitutional challenge as to the validity of the laws establishing local councils and, in particular, the Liverpool Plains Shire Council.
131. Although, as noted by Biscoe J, similar arguments have been raised in other proceedings, it was not entirely clear how the applicants sought to construct their constitutional challenge. Reference was made to ss 116, 117, 118 and 119 of the Constitution. The nature of the argument is obscure. True it is that the Constitution does not expressly recognise the role of local government in Australia. However, there are many aspects of constitutional government which are not expressly identified in the Constitution. Nor does the Constitution deal with the legislative powers of the State, although it has long been understood that (subject to implied limitations derived from the structure and text of the Constitution) they include all powers not within the exclusive powers of the Commonwealth Parliament, conferred by s 52 of the Constitution. State legislative power may be limited in other ways, including by the paramouncy principle where the Commonwealth has legislated with a particular matter within its concurrent powers under s 51.^[29]
132. The role of municipal councils was considered in an early decision of the High Court involving the power of a council to impose a tax on land owned by the Commonwealth of Australia: The Municipal Council of Sydney v The Commonwealth.^[30] As noted by Griffiths CJ:^[31]

“There can be no doubt that the right of taxation is a right of sovereignty. It may be exercised upon all persons, and in respect of all property, within the jurisdiction of the sovereign power which exercises it. Municipal taxation springs from this sovereign right, and is an exercise of it by delegation to the municipality. ... The grant of the power, which is the act of the State, and the exercise of the power, which is the act of the corporation, are essentially different. The Statute operates as a delegation of the taxing power of the State coupled with a direction when and how to use it.”

133. This case does not involve an exercise of the State’s taxing power, but of its power to regulate the use of land in private ownership. If such controls were seen to be part of the “sovereign right of the State”, the Local Government Act might be seen as the modern form of “delegation” of such a power. There is no reputable legal argument upon which the validity of the State’s statutory scheme for regulation of land use in New South Wales can be challenged.

Notice of Motion

134. Finally, reference should be made to a notice of motion included by the applicants in the application book which sought four orders. Proposed order 4 sought an extension of time with respect to the judgment of Biscoe J, a matter which has already been addressed.
135. Order 1 sought leave to adduce “fresh evidence in regards to photographs and material from 2004 to current”. That material was contained in two virtually identical affidavits, one filed by Mr Rumble, the other by Mrs Rumble, both being dated 28 August 2014. The only objection taken to that material was that much of the affidavits was by way of submissions. The Court agreed to admit the affidavits on the basis that parts not asserting facts would be treated as submissions. They have been so considered in the foregoing reasons.
136. Orders 2 and 3 sought to have the constitutional issues already discussed referred to the High Court, for its consideration. The assumption underlying the request appeared to be that only the High Court had jurisdiction to consider constitutional arguments. However, that is not so: s 39(2) of the Judiciary Act 1903 (Cth) invests State courts, including this Court, “with federal jurisdiction, in all matters in which the High Court has original jurisdiction”. More to the point, this Court does not have jurisdiction to refer matters to the High Court.

Conclusion

137. It follows that, to the extent that the notice of appeal seeks to challenge the decision of Pain J, there are no arguable grounds raised. The appeal must be dismissed.
138. The Court should make the following orders:

(1) The applicants have leave to read affidavits dated 28 August 2014 filed by each in this Court, subject to those parts which constitute submissions being treated as such.

(2) In so far as the applicants seek to appeal from the judgment of Biscoe J delivered on 25 July 2013, refuse to extend time to appeal.

(3) In so far as the applicants seek to appeal from the judgments of Pain J of 19 February and 26 May 2014, extend time within which to appeal to 15 September 2014.

(4) Direct that the applicants file, within 14 days, a notice of appeal in the form of the draft contained in the white folder but limited to the appeal from the judgments of Pain J on the charges of contempt.

(5) Dismiss the appeal with respect to each applicant.

(6) Otherwise dismiss the summons seeking leave to appeal and the applicants’ notice of motion.

(7) Order that the applicants, Robert George Rumble and Lee Rumble, pay the costs of the respondent Council in this Court, including the costs relating to the summons, the applicants’ motion and the appeal.

(8) Confirm that the stay on enforcement of the orders made by Pain J expires upon the making of these orders.

**********

Amendments

12 May 2015 - [53] Correcting date to 25 July 2013

02 June 2016 - [6]-[77], [108], [119] minor typographical errors corrected

^[1] Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 (“Rumble”) (at [3]) per Biscoe J.

^[2] Rumble (at [4]).

^[3] Rumble (at [10]).

^[4] Rumble (at [5]).

^[5] (at [16]).

^[6] [2012] NSWDC 95 (at [9]), [73] and [135]).

^[7] Rumble (at [6] – [7]).

^[8] Rumble (at [8] – [9]).

^[9] (at [24]).

^[10] Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34.

^[11] Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13.

^[12] Liverpool Plains Shire Council v Rumble (No 3) [2014] NSWLEC 139 (at [8]).

^[13] Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 at [10].

^[14] Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13 at [21].

^[15] Rumble (No 2) at [10].

^[16] Liverpool Plains Shire Council v Rumble (No 3) [2014] NSWLEC 139 at [32].

^[17] [2014] NSWCA 50 (Leeming JA, Meagher JA and Tobias AJA agreeing).

^[18] Rumble (No 3) at [8].

^[19] Land and Environment Court Act 1979 (NSW), s 5(1).

^[20] [2013] HCA 26; 252 CLR 118 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations omitted).

^[21] Kable at [36].

^[22] Kable at [56]; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435.

^[23] Ross at [17], referring to Matthews v Australian Securities and Investments Commission [2000] FCA 288; 97 FCR 396 at [20] and Little v Lewis [1987] VicRp 64; [1987] VR 798 at 804-805.

^[24] Land and Environment Court Act, s 58.

^[25] Rumble (No 2) at [15]-[17].

^[26] Tcpt, 10/03/15, p 5(8).

^[27] Affidavit, 28 August 2014, par 7.

^[28] Local Government Act, ss 21 and 22.

^[29] Constitution, s 109.

^[30] [1904] HCA 50; (1904) 1 CLR 208.

^[31] At p 230.