Waverley Council -v- Tovir Investments Pty Limited & Rappaport [2012] NSWLEC 209

Waverley Council -v- Tovir Investments Pty Limited & Rappaport [2012] NSWLEC 209

The adjournment application was dismissed because, although Mr Rappaport had significant psychological difficulties affecting preparation, concentration and participation, the weight of the evidence showed he was able to understand the charges, plead to them, understand the proceedings, prepare more slowly than usual, instruct lawyers and conduct a hearing through counsel. His failure to proceed with surgery or recommended therapy was unexplained, and his condition could be accommodated by a more generous pre-hearing timetable and appropriate conduct of the hearing rather than a six-month adjournment. There was also no sufficient reason to adjourn the proceedings against the corporate...

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Class 4 Proceedings; Contempt Proceedings Arising From Alleged Disobedience of Orders Restraining Use of Premises Without Lawful Consent Under the Environmental Planning and Assessment Act 1979 / Oral Application by the Respondents to Adjourn Contempt Proceedings for Six Months After the Second Respondent Did Not Press a Fitness to Plead Inquiry
Outcome
Adjournment application dismissed. Costs reserved.
Legal Topics
['adjournment of Contempt Proceedings' 'fitness to Plead' 'presser Principles' 'psychological Condition Affecting Participation in Hearing' 'enforcement of Injunctions']
['practice and Procedure' 'contempt of Court' 'environmental Planning and Assessment'] ['adjournment of Contempt Proceedings' 'fitness to Plead' 'presser Principles' 'psychological Condition Affecting Participation in Hearing' 'enforcement of Injunctions']

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Procedural Posture

Class 4 Proceedings; Contempt Proceedings Arising From Alleged Disobedience of Orders Restraining Use of Premises Without Lawful Consent Under the Environmental Planning and Assessment Act 1979 / Oral Application by the Respondents to Adjourn Contempt Proceedings for Six Months After the Second Respondent Did Not Press a Fitness to Plead Inquiry

Legal Issues

  1. 1 ["Whether the contempt proceedings against both respondents should be adjourned for six months because of the second respondent's psychological condition." "Whether, despite abandonment of the fitness to plead issue, the second respondent's psychological condition justified a lengthy adjournment or stay of the proceedings." 'Whether any adjournment should extend to the corporate respondent.']

Ratio Decidendi

The adjournment application was dismissed because, although Mr Rappaport had significant psychological difficulties affecting preparation, concentration and participation, the weight of the evidence showed he was able to understand the charges, plead to them, understand the proceedings, prepare more slowly than usual, instruct lawyers and conduct a hearing through counsel. His failure to proceed with surgery or recommended therapy was unexplained, and his condition could be accommodated by a more generous pre-hearing timetable and appropriate conduct of the hearing rather than a six-month adjournment. There was also no sufficient reason to adjourn the proceedings against the corporate...

Court Disposition

Adjournment application dismissed. Costs reserved.

Orders

  • ["The respondents' adjournment application is dismissed." "Costs are reserved including the costs of the second respondent's notice of motion filed on 5 July 2012." 'The proceedings will be listed before the List Judge on Friday 14 September 2012 to take a plea from the second respondent and for directions to...