Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
• Hearing dates: 28 October 2014
• Decision date: 06 November 2014
• Before: Basten JA at [1]; Macfarlan JA at [46]; Leeming JA at [47]

Decision

(1) Dismiss the appeal.

 

(2) Order that the appellants pay the respondent's costs in this Court.

 

[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.]

• Catchwords: ENVIRONMENT AND PLANNING - use of building - temporary accommodation for backpackers - use of contempt proceedings to enforce prohibition on use the subject of consent orders; PROCEDURE - Land and Environment Court - civil contempt - consent orders made restraining use of premises for "backpackers accommodation" - whether evidence established the premises were being used for "backpackers accommodation" as defined by local environmental plan - whether trial court could rely on failure of defendants to give evidence; STATUTORY INTERPRETATION - definition in statute - use of defined term to inform definition - whether such use permissible - whether definition to be construed separately from its operative provision; WORDS AND PHRASES - "backpackers accommodation" - "temporary accommodation" - Waverley Local Environmental Plan 1996
• Cases Cited: Barangaroo Delivery Authority v Lend Lease (Millers Point) Pty Ltd [2014] NSWCA 279; Birmingham City Council v Walker [2007] 2 AC 262; Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101; Charter Reinsurance Co Ltd v Fagan [1997] AC 313; Commissioner of Police v Kennedy [2007] NSWCA 328; 5 DDCR 380; Doyle v The Commonwealth [1985] HCA 46; 156 CLR 510; Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628; Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180; Hardy Wine Company Ltd v Janevruss Pty Ltd [2006] VSCA 28; Hinch v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15; Kelly v The Queen [2004] HCA 12; 218 CLR 216; Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; 71 NSWLR 306; Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 310 ALR 113; Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41; Marks v Commonwealth (1964) 111 CLR 549; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2014] NSWCA 323; The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404; Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; Waverley Council v Tovir Investments Pty Ltd & Rappaport [2012] NSWLEC 209; Witham v Holloway [1995] HCA 3; 183 CLR 525
• Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at [6.58]
• Category: Principal judgment
• Parties: Tovir Investments Pty Ltd (First Appellant); Michael Rappaport (Second Appellant); Waverley Council (Respondent)
• Representation: Counsel: Mr TGR Parker SC/Mr AM Gruzman (Appellants); Mr A Gallaso SC (Respondent); Solicitors: Boskovitz & Associates (Appellants); Sparke Helmore (Respondent)
• File Number(s): 2013/188686

Decision under appeal

• Jurisdiction: 9106
• Citation: Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 3) [2013] NSWLEC 35; Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88
• Before: Biscoe J
• File Number(s): 40917/10 and 40918/10

Judgment

 

1 BASTEN JA: In January and February 2011 the appellants consented to orders restraining them from using premises at two locations, one being 6 Kent Street, Waverley and the other 34 Imperial Avenue, Bondi, for the purpose of "backpackers' accommodation" and for the purpose of a "boarding house". Each of the premises was owned by the first appellant, Tovir Investments Pty Ltd ("Tovir") and managed by the second appellant, Mr Michael Rappaport. The particular circumstance underlying each consent order was that the appellants did not have consent under the Waverley Local Environmental Plan 1996 ("Waverley LEP") to use the premises for the identified purposes.

 

2 On 16 April 2012 the Council, having formed the view that from February 2011 the premises continued to be used in contravention of the consent orders, commenced proceedings against the appellants alleging contempt of the Land and Environment Court.

 

3 There is a significant public interest in proceedings of this nature being dealt with expeditiously and without delay. While Tovir purported to enter a plea of not guilty to the charges (although they were civil and not criminal in nature), Mr Rappaport filed a motion on 5 July 2012 seeking a hearing into his "fitness to plead". For reasons which are not known to this Court, that motion did not come before the Land and Environment Court until early September 2012, at which point the motion was withdrawn and a six month adjournment sought. The adjournment application was dismissed by the trial judge (Biscoe J): Waverley Council v Tovir Investments Pty Ltd & Rappaport [2012] NSWLEC 209. The hearing commenced on 18 February 2013 and ran for some 11 days. A judgment was delivered expeditiously on 27 March 2013 pursuant to which each of the appellants was found guilty of contempt and ordered to pay costs: Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 3) [2013] NSWLEC 35. The matter was then stood over to June 2013 when each of the appellants was sentenced, by way of a fine.

 

4 In the course of 2012 Tovir obtained consents to development applications with respect to each property, as a result of which it seems that redevelopment was commenced and there was no occasion for injunctive relief with respect to the use of the premises.

 

5 On 17 September 2013, being the last day permitted under the rules assuming a notice of intention to appeal was served on the Council, the appellants lodged a single notice of appeal against the findings that each had committed contempt of the Land and Environment Court with respect to the use of both premises. The notice contained eight grounds of appeal.

 

6 Pursuant to written submissions filed on 13 December 2013, the appellants abandoned grounds 2, 5, 7 and 8. Pursuant to further written submissions filed on 17 October 2014, the appellants abandoned ground 6. The remaining grounds were as follows:

 

(1) His Honour erred in finding evidence of sufficient facts to substantiate the alleged breach constituting contempt in circumstances where there was no direct evidence.

 

(3) His Honour erred in finding that the probative value of the circumstantial evidence was high in showing that the subject premises were used as "backpacker's accommodation".

 

(4) His Honour erred in drawing the inference from the circumstantial evidence that the subject premises were used as "backpackers' accommodation".

 

7 The public interest in dealing expeditiously with charges of contempt of a superior court continues to operate with respect to an appeal. Following the filing of the notice of appeal, the matter came before the Registrar on 13 November 2013. The matter was stood over to 18 December 2013 with, however, a direction that the red book and the appellants' submissions were to be filed and served by 11 December 2013. On 18 December the matter was listed for hearing on 24 June 2014 with an estimated duration of two days. Further directions hearings were available if required. Further delay has resulted from the vacation of the June dates on the application of the appellants.

 

8 The case now sought to be run by the appellants has been confined to certain factual issues deemed to be fairly arguable. For the reasons set out below, the appeal in respect of each appellant must be dismissed. The appellants must pay the respondent's costs in this Court.

 

Nature of charges

9 Although the consent orders identified two purposes for which the premises could not be used (namely backpackers' accommodation and as a boarding house) the charges were limited to use of each of the premises as "backpackers' accommodation", as that expression is defined in the Waverley LEP. Although it was further alleged that the conduct had occurred without first obtaining a lawful consent for such use, it was common ground that, with respect to those premises, such a use was prohibited pursuant to the relevant zoning provisions of the Waverley LEP. The period of the contravention was identified in each case as running from 12 February 2011 until either 14 April 2012 or (in respect of the Imperial Avenue premises) "about March 2012". Of Tovir it was alleged that the company had "caused and permitted" the premises to be used in contravention of the respective orders; with respect to Mr Rappaport, it was alleged that he had "caused" the premises to be so used.

 

10 The essential element of the Council's case required proof as to the nature and characteristics of the use of the premises during a period from, in effect, the execution of the consent orders by the parties to the time the charges were laid. Occupation of the premises varied seasonally, being higher in the summer months, a factor relied upon by the Council in support of its characterisation of the accommodation being provided. Otherwise, little turned upon temporal issues: the appellants accepted that non-complying use did not need to be proved month by month and that the existence of periods where no contravention could be established would go only to penalty. No party challenged the penalties.

 

11 Although the grounds of appeal did not challenge the approach adopted by the trial judge with respect to the characteristics of usage prohibited by the consent orders, the appellants did place some emphasis upon the nature of the prohibited conduct in order to submit that the charges were not proved beyond reasonable doubt. It is necessary, therefore, to identify the relevant factual elements encompassed by use of premises for the purposes of "backpackers' accommodation".

 

12 The Waverley LEP contained two defined terms which were central to this exercise, namely:

 

"backpackers accommodation" means a building used for the purpose of providing accommodation for tourists, travellers or persons engaged in recreational pursuits and that:

 

(a) may have shared facilities, such as a communal bathroom, kitchen or laundry, and

(b) will generally provide shared accommodation in which there are two or more persons in a room, and

(c) will generally provide temporary accommodation, but may provide permanent accommodation.

 

...

 

"temporary accommodation" means premises providing short-term accommodation on a weekly and monthly basis, being premises where a person may stay for no more than 2 months.

 

13 To marry these two definitions is not grammatically straightforward; nor is the resultant meaning immediately obvious. Accepting that principles of statutory construction apply unadjusted to an instrument such as the Waverley LEP, it is generally accepted that the proper course is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome": Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103] (McHugh J). However, if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise: Commissioner of Police v Kennedy [2007] NSWCA 328; 5 DDCR 380 at [44].

 

14 The statement of McHugh J in Kelly was a step to the conclusion that "[t]o construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment": at [103]. The commencement of the reasoning involved two antecedent propositions, namely that "the function of a definition is not to enact substantive law", and a conclusion that the definition is not expressly or impliedly excluded.

 

15 It has been suggested that McHugh J's approach of "reading the words of a proposed definition into the text containing the defined term to test its merits" accords with good drafting practice: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at [6.58]. However, it is possible that some further qualifications will operate in particular circumstances.

 

16 First, to say that the function of a definition is not to enact substantive law is a proposition commonly sourced to the joint reasons of Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635. However to continue, as the joint reasons did, to say that such clauses are "no more than an aid to the construction of the statute and do not operate in any other way" may be to diminish their proper significance in some circumstances. Gibb was concerned with the statutory definition of "dividend" to include the issue of certain bonus shares, which then fed in to the definition of "income", a term used in many and varying contexts within the relevant taxation statute. In most circumstances, to treat a definition clause as handmaiden rather than mistress is to acknowledge the possibility of its exclusion in a particular context, by implication.

 

17 The further qualification to the temporal sequence suggested by McHugh J in Kelly is that the ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether it should be excluded by implication. For that purpose, one is likely to require some understanding of the meaning of the definition itself. A degree of flexibility of approach may be required.

 

18 One further aspect of the definitions in the Waverley LEP should be noted, namely that each identifies the term and then, more discursively, what it "means". Speaking generally, "means" denotes an exhaustive definition: Pearce and Geddes, at [6.60]. Thus, in the definition of backpackers' accommodation, the term "temporary accommodation" should be taken to refer only to the language in which the latter term is defined. Again, such a conclusion may be rebutted by, for example, the context in which the term is introduced. In Kelly at [103], McHugh J warned that "[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment." Such a warning gains traction in the present case, the appellants seeking to give an absolute and legalistic operation to the last limb of the definition of "temporary accommodation" as referring to premises "where a person may stay for no more than 2 months". This was a case where to construe the definition outside the provision in which it is to be applied is apt to give rise to error.

 

19 To construe the definition "backpackers accommodation" one must navigate a sea of verbiage. The defined phrase means "a building used for [the specified] purpose." The purpose is defined by reference to three characteristics. First, there is the character of the persons for whom the accommodation is to be provided, namely "tourists, travellers or persons engaged in recreational pursuits". These words are clearly used in a colloquial sense which is also reflected in the term being defined, which refers to "backpackers".

 

20 There are circumstances in which it is impermissible to use the defined term in giving meaning to a definition: Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; 140 CLR 503 at 507 (Gibbs J) and The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 419 (the Court). However, in each of those cases the Court rejected use of an adjective in the defined term to read down a definition which otherwise widened the ordinary meaning (in Wacal) or the meaning which would derive from existing practice and principle (in 'Shin Kobe Maru'). It seems unlikely that the approach eschewed in those cases was intended to be universally rejected: Barangaroo Delivery Authority v Lend Lease (Millers Point) Pty Ltd [2014] NSWCA 279 at [11] (Leeming JA, Beazley P and Tobias AJA agreeing). As explained by Lord Hoffmann, dealing with the word "successor" in tenancy legislation, "[a]lthough successor is a defined expression, the ordinary meaning of the word is part of the material which can be used to construe the definition": Birmingham City Council v Walker [2007] 2 AC 262 at [11]. A similar approach has been adopted in construing contractual provisions: Hardy Wine Company Ltd v Janevruss Pty Ltd [2006] VSCA 28 at [5] (Callaway JA, Eames and Ashley JJA agreeing); Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 at [17] (Lord Hoffmann); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2014] NSWCA 323 at [47] (Macfarlan JA), [103] (Meagher JA); Barangaroo at [10]-[12].

 

21 The present case involves a definition neither giving an expression a "special meaning" (in the language of Wacal) nor limiting what might otherwise constitute an expansive definition. Indeed, the Waverley LEP lacks the degree of precision and formality one expects in a statute. In such circumstances, reliance may appropriately be placed on the term being defined. As will be seen shortly, there was a volume of material in the present case which suggested that the premises in question were intended for use by travellers of a kind commonly described as backpackers.

 

22 The second group of characteristics relates to the nature of the premises. The first appears to be less than a mandatory element, namely the existence of "shared facilities", such as a communal bathroom, kitchen or laundry. The second element is "shared accommodation", having two or more persons in one room. The three paragraphs in the definition appear to apply to the "building" so that the opening words to par (b), "will generally provide", is ambiguous as to whether some part of the building is expected to provide shared accommodation, or merely that a building may, but need not, provide shared accommodation.

 

23 The third characteristic adds a temporal element which adopts the further defined term "temporary accommodation". Again, the paragraph opens with the words "will generally provide" and ends with the qualification, "but may provide permanent accommodation", the combination of which make it clear that there is no inflexible or mandatory element. Reading the definition of temporary accommodation into par (c), while making allowance for grammatical awkwardness, the temporal characteristic should be understood as follows:

 

The building will generally provide short-term accommodation on a weekly or monthly basis, where a person may stay for no more than 2 months, but may provide non-temporary accommodation.

 

24 Once the definition of "temporary accommodation" is read into par (c) of the definition of "backpackers accommodation" it is clear that there is no requirement to exclude an occupier after two months, whether as a condition on which occupation is permitted or as a matter of fact on a person by person basis.

 

Approach of trial judge

25 The understanding of the Waverley LEP with respect to backpackers' accommodation set out above is substantially that adopted by the trial judge at [15]-[22]. After dealing with certain other legal principles not now in dispute, the judge then addressed the evidence with respect to the use of the separate premises at Imperial Avenue and Kent Street in a careful and methodical way, having regard to each of the elements referred to in the definition.

 

26 In broad terms, the evidence fell into three categories. First, there was the evidence of residents in the vicinity (sometimes referred to as "neighbours") in relation to each address. Secondly, there was the evidence of a private inquiry agent employed on instructions from the Council to visit the premises with a female companion, posing as potential tenants. On 28 March 2011 the two of them met Mr Rappaport and colleague at Bondi Junction. In the course of the afternoon, they visited two properties (one of which was Imperial Avenue) and a second property at Blair Street, Bondi. The agent, Mr Hurley, prepared an affidavit dated 19 March 2012 which was read in the proceedings. He was cross-examined.

 

27 Thirdly, there was evidence downloaded in about April 2012 from websites which contained details of "Bondi Share House" (which identified five properties, including Kent Street and Imperial Avenue) and "Bondi International House", which included the same properties.

 

28 The fact that the websites were clearly directed to travellers, described the premises as "share houses", referred to tenants renting a single room but having access to bathrooms, living room and kitchen and noting that the landlord "generally limits shared rooms to 30% of the total household in order to avoid overcrowding", provided an ample basis for the trial judge to be satisfied that the characteristics of the clientele and the elements identified in pars (a) and (b) of the definition were satisfied.

 

29 So far as the temporal element in par (c) was concerned, the trial judge dealt briefly with the focus of the appellants' defence. That was because, in dealing with the first element, namely accommodation for tourists or travellers, the voluminous evidence of the neighbours as to a large turnover of short-term residents, the predominance of campervans and vehicles with interstate plates, the regular movement of young people coming in and out of the premises and the predominance of foreign language speakers, had already been considered. The judge had also dealt, in relation to Imperial Avenue, with the appellants' submissions that foreign accents and language was not "proof of tourism or travelling": at [46]-[49]. Similarly, the judge had already dealt with the arguments relating to vehicles, turnover of occupants, number of occupants varying with the seasons, persons arriving with luggage bags and backpacks, volumes of waste, the movement of mattresses and bedding and the evidence of late and rowdy parties. All of these matters were relevant to the issue of temporary accommodation. Thus, in dealing specifically with par (c), the trial judge focused upon the appellants' contentions based on the material on the website and certain statements made by Mr Rappaport to Mr Hurley: at [85]-[86]. This material and the findings based upon it were the subject of concerted challenge on the appeal.

 

30 With respect to the Kent Street premises, the judge accepted that there were three persons who had lived at the premises for more than two months, described by one of the neighbours as "a roofer and two tradesmen": at [124]. The judge also accepted that there were five persons with foreign accents who had lived in the downstairs flat for a period from January to March 2012, which may well have been more than two months. Nevertheless, the evidence of turnover, transience and seasonality satisfied him beyond reasonable doubt that "the building generally provided temporary accommodation for no more than two months during the charge period": at [125]. He adopted the conclusions already reached with respect to the Imperial Avenue premises in regard to statements made on the websites and by Mr Rappaport to Mr Hurley: at [126].

 

Case on appeal

31 The thrust of the appellants' submissions on appeal was that the purpose of the appellants in providing accommodation at the two premises could only contravene the consent orders if it was limited to providing accommodation to travellers for no more than two months. On the Bondi Share House website, there was a section headed "Terms & Conditions". That page made a number of somewhat disparate comments apparently in response to two questions, namely:

 

"1. One of the biggest issues with share accommodation is who will I share with and what happens if I want to change houses?"

 

"2. What happens if things really don't work out and I just want to leave, and I have signed a lease?"

 

The answers provided to these questions were by no means pellucid or necessarily conducive to "peace of mind" to which reference was made. Significantly for present purposes, following the answers these statements appeared:

 

"Minimum stay: 3 months

 

Bond: two weeks rent."

 

What then appears, which may have been intended to be on a fresh line with a new heading "Room rates", said that a payment made as a price of use of a room and shared use of other facilities constituted a "share of the rent in the house". The website also stated that "[a]s a term on [sic] the agreement renter's [sic] are required to respect the other residents [sic] rights to peaceful enjoyment of their property so loud parties late at night are not permitted."

 

32 The second aspect of the material relied upon by the appellants was material contained in the affidavit of Mr Hurley describing his conversations with Mr Rappaport. The following statements were relied on, at pars 15 and 46, in the following terms:

 

"15. I [Mr Hurley] then said 'Are valuables safe in the houses?' Mr Rappaport said words to the effect, 'Everything is safe as I keep all the tenants' passports. I am looking more for long term tenants than short term tenants'.

 

...

 

46. He then said 'I target students to rent rooms as they are low maintenance and less trouble. I usually didn't like to take people on a working holiday visa as I've had problems with them in the past. I never take people that want to stay for less than three months, and most of my tenants are staying for 6 to 18 months before moving on. Backpackers and holiday visitors are less likely to pay rent and they get drunk every night.'"

 

33 This material was summarised by the trial judge at [85]. He concluded at [86]:

 

"In my view, during the charge period all this did not reflect the reality. It may have been aspirational or transitional, possibly arising from the consent orders made in early 2011, but, if so, it generally had not yet been achieved. On the unchallenged evidence of predominantly high turnover, transience, seasonality and so on to which I have referred, I am satisfied beyond reasonable doubt that the reality during the charge period was that the premises still generally provided temporary accommodation to tourists and travellers."

 

34 The appellants criticised the remark that the information conveyed on the website may have been "aspirational or transitional" as speculation. That characterisation may be accepted: other speculative possibilities come to mind. The gravamen of the passage is, however, that the statements did not match reality. For example, one resident whose evidence the trial judge accepted (he was called as a witness, but there was no significant challenge to any of this evidence in cross-examination), was set out at [55] by the trial judge:

 

"Mr Arthur deposed that in the time he had lived in Imperial Avenue:

 

...I have seen a constant stream of people entering and leaving the Premises. These people, whom I have seen coming and going from the Premises are generally aged between 18 and late 20's. Often I have seen them carrying day packs, or bags of shopping. On occasions when I have seen people arrive at the Premises for the first time, I have seen them carrying large travel packs.

...

I have also not seen on a regular basis, any of those people coming and going from the Premises for more than 2 weeks at a time. From the time I have lived in my unit I have seen so many people come and go from the Premises, I could not say that there are any long term residents. The only evidence of any one person living in the premises for more than a couple of weeks is a small work van with "Homelift" written on the side. I have regularly seen that van parked in the driveway to the Premises or just outside the Premises since October 2011 to the present date. That aside, I do not recognize any one person as a long term resident at the Premises.

 

Since I have been living at 49 Imperial Avenue, I have come to know my neighbours who live in the apartment complexes at 47 and 49 Imperial Avenue and who I see regularly. However I have not come to know any person residing at the Premises, because of the frequency with which I have seen people coming and going from the Premises."

 

35 This evidence (which was supported by evidence from other neighbours) led, almost inevitably, to the conclusion that the particular statements on the website suggesting that accommodation for less than three months would not be provided was not applied. Further, in telling Mr Hurley that he never took people that wanted to stay for less than three months and most stayed for 6-18 months, Mr Rappaport distinguished such people from "backpackers" and "holiday visitors". The latter he said were "less likely to pay rent and they get drunk every night." Yet when, in the course of the same visit, a male resident said to Mr Rappaport that they had had "a big party" a few nights ago and that "[t]he police showed up after complaints were made by the neighbours so we had to close it down", far from suggesting that this conduct was a breach of a lease or licence, Mr Rappaport replied that the "neighbours there are very sensitive and hate people in the apartment having parties ... [it] is a big problem for me with the Council and police." Because Mr Rappaport did not give evidence, these inconsistencies were not explained. Further, it does not appear that Mr Rappaport consistently made the firm distinction between acceptable tenants on the one hand and backpackers and holiday visitors on the other. There was evidence (accepted by the trial judge ) from a witness occupying the house behind the Kent Street premises that, in mid-February 2011, Mr Rappaport was heard to say to someone inside the premises, words to the effect:

 

"I manage 25% of the backpackers in Bondi. We used to manage a lot more."

 

36 The witness' husband gave evidence to similar effect. Both were challenged in cross-examination, it being put to both that they had fabricated the evidence. The trial judge dealt with this material in considering Mr Rappaport's role in "causing" the use of the premises for the prohibited purpose, at [130]-[135]. The trial judge identified in some detail the criticisms made by the appellants, at [133]-[134]. Having carefully considered each of the points raised, he accepted the evidence as reliable: at [134]. He also rejected the proposition that the comment had "no probative value in the relation to the use of the subject premises": at [135]. Although not addressed by the judge in the context of the inference sought to be drawn from the website and the statements made to Mr Hurley, the statement was inconsistent with any inference that he did not provide accommodation to backpackers. It provided emphatic support for the independent evidence of what happened at the two premises and additional support for the judge's rejection of the submission that the premises were not used as backpackers' accommodation. Again, as Mr Rappaport did not himself give evidence there was no explanation of the inconsistencies.

 

37 Some of Mr Rappaport's own statements provided support for the situation described by the neighbours. Thus, in describing his business, Mr Rappaport indicated that he ran "a sort of dating service in real estate" and matched "the more quiet people in one house and the louder, party animals in another house." He also stated that he kept "all the tenants' passports" and that he fumigated the houses "each month for bed bugs" because he got "a lot of problems with bed bugs" and it was "cheaper to fumigate each month than buy new mattresses." These statements were all consistent with provision of accommodation for travellers and tourists, no doubt with a willingness to accommodate longer term visitors.

 

38 Finally, the appellants challenged the findings of fact as operating at a high level of generality, and thus insufficient to satisfy the Court that there had been a breach of the orders established to the criminal standard of proof.

 

39 This approach was relied upon before the trial judge who carefully identified the submissions addressed to him with respect to various aspects of the evidence including, for example, the allegation that there was "an unproven, underlying assumption that speaking in a foreign accent or language is evidence of nationality and proof of tourism or travelling": at [46(a)]. As the trial judge noted, the mere fact that some persons at a particular location speak with a foreign accent or in a foreign language "does not of itself prove that they are tourists or travellers": at [48]. However, the judge continued, the picture changes when "the context and circumstances" are taken into account, having regard to various factors set out at [49]. Although on appeal counsel accepted that the various matters relied upon by the trial judge could properly be treated as strands in a rope, rather than links in a chain, to adopt a common comparison by analogy, nevertheless they consistently submitted that one or other matter did not "prove" an element of the charge. At no point was the Court taken to any passage in the reasoning of the trial judge which adopted such an impermissible approach. There is no need to repeat the exercise undertaken by the trial judge: his reasons are readily available. Given the findings of primary fact, the evidence in favour of the conclusion that both premises were used as backpackers' accommodation (as defined in the Waverley LEP) was overwhelming. For these reasons, accepting the approach and findings of the trial judge, the appeal must be dismissed.

 

Absence of evidence from the appellants

40 Before leaving the judgment below, it is desirable to comment on one aspect of the approach adopted by the trial judge which may have been unduly favourable to the appellants. There was no challenge to the proposition that these were proceedings for civil contempt, not criminal contempt, as discussed at [23] of the trial judge's reasons. The judge continued:

 

"Apart from procedural differences, the distinction between civil and criminal contempts is largely illusory because in both cases the charge has to be proved beyond reasonable doubt and the usual outcome is punishment ...."

 

41 The judge noted a "logical difference", namely that a contemnor judged guilty of a civil contempt would not be convicted. However the trial judge also concluded that "the general criminal trial right to silence rule applies in a trial of civil contempt and not the general civil hearing rule in Jones v Dunkel": at [24]. After noting that there appeared to be no authority on the point, the judge reasoned that because the criminal standard of proof applied and "safeguards similar to those appropriate in criminal proceedings apply", referring to Doyle v The Commonwealth [1985] HCA 46; 156 CLR 510 at 516, the "right to silence" applied.

 

42 Doyle is a flimsy basis for such a conclusion. It concerned the procedural steps necessary to bring the nature of the charge to the attention of the alleged contemnor, in circumstances where a judge had proceeded ex parte, without service of a copy of the notice of the application or the order which authorised the Sheriff to arrest and imprison those in breach. Further, the statement in Witham v Holloway [1995] HCA 3; 183 CLR 525 at 534 that the distinction between civil and criminal contempt is "in significant respects, illusory" was not used to deny any procedural difference, but to deny that the civil burden of proof applied in civil contempts. For other purposes, the distinction may retain significance.

 

43 It would at least be curious that a party whose civil rights have been breached may more readily obtain a court order restraining a continuation of the breach than enforce the order where a continuation of the conduct is no longer merely a breach of a private right, but an affront to the authority of the court. For example, it is unclear why a plaintiff who obtains injunctive relief would be entitled to the costs of those proceedings but not the costs of proceedings to enforce the court's order: cf Hinch v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15 at 89-90. Similar reasoning would suggest that a defendant whose silence might operate to his detriment in a civil claim should not be able to stand by with impunity when proceedings are brought to enforce the order made by the court in respect of the civil claim.

 

44 As nothing turns on the matter for the purposes of this appeal, it is sufficient to note that the approach of the trial judge in this respect may require reconsideration in a case where the point requires determination.

 

Orders

45 The Court should make the following orders:

 

(1) Dismiss the appeal.

 

(2) Order that the appellants pay the respondent's costs in this Court.

 

46 MACFARLAN JA: I agree with Basten JA and also with the additional observations of Leeming JA.

 

47 LEEMING JA: I agree with Basten JA's reasons and conclusion that this appeal must be dismissed. I wish to add the following in respect of the question of construction of "backpackers accommodation" in the Waverley Local Environmental Plan 1996 which was at the forefront of the appellants' submissions. The question is whether it was necessary for the prosecutor to demonstrate (beyond reasonable doubt) anything about the legal nature of guests' staying at the "backpackers accommodation", or was merely the fact of their presence sufficient?

 

48 The appellants' submission had two strands. The first focussed upon the definition "temporary accommodation", which was picked up in the definition of "backpackers accommodation" and imports a requirement that the premises are generally "premises where a person may stay for no more than two months". The words "may stay" were said, on their natural construction, to import a legal prohibition upon guests' staying in excess of two months.

 

49 The second (advanced primarily in oral submissions in reply) was the word "providing", which is found both in the definition of "temporary accommodation", and (repeatedly) in the definition of "backpackers accommodation". It was said that the "providing" of accommodation carried with it the notion that the providing was made by the landlord, thereby reinforcing the conclusion that the clause was directed to the legal nature of the tenancy.

 

50 The appellants' construction should not be accepted. The textual foundation on which the appellants rely is hardly unequivocal. That is most easily seen in relation to the words "provide" and "providing". Repeatedly, the subject of the verb "provide" and "providing" is not the owner or landlord, but the building - this occurs four times in the two definitions. That is ordinary English prose: an ATM machine may "provide" foreign currency, and a restaurant may "provide" take-away meals. The language in such cases is directed to events in the real world, rather than the legal relations between banker and customer, or diner and restaurateur. (These are instances of metonymy, as to which see Marks v Commonwealth (1964) 111 CLR 549 at 567; as the examples given by Windeyer J demonstrate, it has been known for centuries.) So too in the Waverley LEP: the ordinary meaning of the language is directed to the use, rather than the legal relationship pursuant to which the use takes place.

 

51 The appellants' submission is on stronger ground in relation to "may stay for no more", because "may not" in such a context typically expresses a limitation on power, and thus a legal relation. But it need not do so. The word "may" may simply refer to the uncertain future without any suggestion of a limitation on power (consider "we may not take a holiday this year"). Moreover, the force of the appellants' submission is undercut by the considerations which follow.

 

52 First, like many provisions in the LEP, the overall focus is upon use. That may be seen in the opening words of the definition: "means a building used for ..."; those words are the dominant words in the clause and on a natural reading govern what follows. It may also be seen that paragraphs (a) and (b) focus upon what happens in fact, as opposed to a legal relation.

 

53 Secondly, the opening words of (b) and (c) are identical: "will generally provide". That is a textual matter telling against the appellants' construction: it seems improbable that, on their true construction, the same words in (b) point to a factual circumstance, while those in (c) point to a legal relationship.

 

54 Thirdly, it will be seen that the definitions used in the LEP are used less than precisely. As Basten JA's reasons amply demonstrate, it is not possible, in accordance with the process described by McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], to transcribe the defined term into "backpackers accommodation"; some flexibility has to be given to the words used, in order to make sense of them. Where the drafter has been less than fastidiously precise in his or her choice of language, only limited weight may be given to relatively minor features such as those to which the appellants point. This consideration applies to contracts: see Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 310 ALR 113 at [98]. It applies to legislative instruments as well, for it derives from the care with which language is used. Indeed, it has been said that it has particular application to subordinate legislation. Lord Reid said in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183 that the regulations in that appeal "ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament". Decisions applying that reasoning may be found in Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41.

 

55 Accordingly, this is a case which well illustrates what Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 that "the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another." In their context, in a somewhat casually drafted internal definition within an LEP where the focus is substantially on actual use, the words "may stay for no more than 2 months" are to be read as denoting the actual duration of the stay, rather than its legal incidents.

 

56 Finally, the primary judge was entitled to rely upon improbability of outcome in rejecting the appellants' construction. The appellants submitted that because this was not a commercial contract, commercial improbability was not a relevant consideration. However, a similar principle is applicable. The construction propounded by the appellants would in substance deny most if not all operation to the provision (for there must be few if any tenancies which cannot be extended beyond two months). That result can scarcely be taken to have been intended, and it is well established that courts should strain against given such a legal meaning to a provision, including in an LEP: Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121; 71 NSWLR 306 at [52].

 

**********

Amendments

10 November 2015 - [21] - Deleted "be" before "appropriately".
[31] - Added "which" before "may have".

Decision last updated: 10 November 2015