Randwick City Council v Athens and Anor (No. 1) [2004] NSWLEC 23

Land and Environment Court of New South Wales

CITATION : Randwick City Council v Athens and Anor (No. 1) [2004] NSWLEC 23 APPLICANT Randwick City Council

PARTIES : FIRST RESPONDENT Peta Athens

SECOND RESPONDENT Athens Holdings Pty Limited (ACN 001 166 552) FILE NUMBER(S) : 40097 of 2000 CORAM: Cowdroy J KEY ISSUES: Contempt :- whether prosecutor held authority to institute charges - whether charges sufficiently identify offence - whether charge creates doubt or duplicity - adequacy of form of notice of motion. Land and Environment Court Act 1979, s 23, s 20(4),) LEGISLATION CITED: Local Government Act 1993, s 697 Randwick Local Environmental Plan 1998 Supreme Court Act 1970, Pt 42 r 6, Pt 55 CASES CITED: Tweed Shire Council v Mannix (1981) 50 LGRA 369; Witham v Holloway 1995 183 CLR 525 DATES OF HEARING: 28/01/2004 EX TEMPORE 01/28/2004 JUDGMENT DATE :

APPLICANT Mr A. Thompson (Barrister)

SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr M. Ramage QC

SOLICITORS Levitt Robinson Solicitors and Associates

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40097 of 2000

Cowdroy J

28 February 2004 Randwick City Council Applicant v Peta Athens First Respondent Athens Holding Pty Limited (ACN 001 166 552) Second Respondent Judgment [No. 1 Interlocutory]

Introduction 1 Objection has been taken by the alleged contemnors to the statement of charges which are attached to the notice of motion filed in these proceedings on 4 September 2003. 2 The objections are two fold. Firstly, it is alleged that there is no authority given by the prosecutor for the institution of these proceedings. Secondly, it is alleged that the statement of charge is duplicitous.

3 This Court has jurisdiction to enforce its own orders. Section 23 of the Land and Environment Court Act 1979 invests this Court with power in relation to matters in which it has jurisdiction to make order of such kinds, including interlocutory orders, as the Court thinks appropriate. Section 20(4) of the Land and Environment Act 1979 provides that the provisions of the Supreme Court Act 1970 and the rules thereunder relating to the enforcement of judgments or orders of the Supreme Court apply to the enforcement of any judgment or order of the Court in proceedings referred to in Class 4 of its jurisdiction, and so applies if references in those provisions to the Supreme Court were references to the Court with such adaptations as may be necessary as prescribed by the rules. Part 42 rule 6 of the Supreme Court Rules 1970 provides that where a judgment or an order requires an act to be done within a specified time in the judgment, or requires a person not to do an act and there is disobedience, proceedings may be instituted for contempt which may result in committal of a person so bound or sequestration of that person's property.

4 In Tweed Shire Council v Mannix (1981) 50 LGRA 369, Cripps J held that s 20(4) of the Land and Environment Court Act 1979 adopts Part 42 Enforcement provisions, and Part 55 Contempt proceedings, of the Supreme Court Rules. Accordingly the Court is invested with power to deal with matters which are now before the Court.

5 The second matter to be considered relates to the nature of the proceedings. They are contempt proceedings which are not criminal but civil proceedings. That has been made clear by the High Court of Australia in Witham v Holloway 1995 183 CLR 525 where the majority at 534 said:- "However, to say the proceedings for contempt are essentially criminal in nature is not to equate them with a trial of a criminal charge."

6 With respect to the specific matters raised by the alleged contemnors relating to absence of authority to institute these proceedings, s 697 of the Local Government Act 1993 makes provision for the institution of various proceedings, including prosecutions, and provides that proof of authority to institute such proceedings is not required unless evidence is adduced by the respondent of some deficiency. There is no evidence to suggest that the proceedings are unauthorised and accordingly that ground of objection must fail.

7 The second ground of objection relates to alleged duplicity. The statement of charge alleges a breach of two separate orders. The first is that order 1 made by this Court on 1 June 2001 has been breached, in that the alleged contemnors used premises at 40 Coogee Bay Road, Coogee for the purposes of backpackers' accommodation after 31 March 2002. The term "backpacker" is defined, the Court is informed, in the Randwick Local Environmental Plan 1998. It constitutes a specific use.

8 Senior counsel who appears for the alleged contemnors submits that no date is specified of the illegal use. He has informed the Court that in fact a stay of the order of 31 March 2002 was granted by this Court pending an appeal to the Court of Appeal. Further, a concession was given by the Council extending the compliance of the order until May 2002.

9 By letter dated 9 October 2003 Levitt Robinson Solicitors for the alleged contemnors. sought details by way of particulars of the precise date or dates or periods in which it was alleged the respondents were using the premises for the purpose of backpackers' accommodation after 31 March 2002. Bowen and Gerathy, solicitors for the prosecutor, responded by letter dated 15 October 2003 providing the following details:- It is alleged that the respondents were using the premises for the purpose of back-packer accommodation after 31 March 2002 and continuing up to the present time.

10 There is no duplicity or doubt generated by the charge. The prosecutor has the task of satisfying the Court that after 31 March 2002, and continuing up to the present time, the subject premises have been used for backpacker accommodation. The charge is simple and clear. The objection is rejected.

11 It is also alleged that the prosecutor was required to distinguish between the use of the premises as budget accommodation and backpacker accommodation. The charge is unequivocal, namely that the premises were used for the purpose of backpacker accommodation at the relevant time. Accordingly such objection is rejected.

12 An objection was taken to the second charge relating to the removal of sliding doors which was referred to in Order 3 made by the Court on 8 December 2000. However, that objection was not pressed.

13 Lastly, an objection was taken to the form of the Notice of Motion. The Notice of Motion, in paragraph 1, states:

The first and second respondents be punished for contempt of Court.

The objection is taken that punishment would only follow if a finding were made that the first and second respondents had been found guilty of contempt of Court. As a matter of form, the Notice of Motion should seek an order that the contempt be found proved, followed by an order seeking punishment. However the Court does not consider that this technical deficiency renders the Notice of Motion so inadequate or defective that it should be dismissed. Accordingly the objections raised by the alleged contemnors are dismissed.

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