Armidale City Council v Ross Connell

[1998] NSWLEC 12

Land and Environment Court

of New South Wales

CITATION:	ARMIDALE CITY COUNCIL v. ROSS CONNELL [1998] NSWLEC 12
PARTIES:	ARMIDALE CITY COUNCIL v. ROSS CONNELL
FILE NUMBER(S):	40197 of 1995
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	20 July 1998
EX TEMPORE JUDGMENT DATE :	07/20/1998
LEGAL REPRESENTATIVES:	Applicant Mr W P O'Rourke, Solicitor Respondent in person

JUDGMENT:

EXTEMPORE JUDGMENT

Two matters are before me. The first concerns punishment of Mr Connell for contempt of the orders of this Court. The second is a notice of motion lodged by the council seeking an order under pt 42 r 9 of the Supreme Court Rules for the substitution of the council to carry out the orders that this Court made in February 1997 for the removal of a building and building materials from the land at Madgwick Drive, Armidale (“the site”).

I deal first with the question of the notice of motion. I propose to stand that over.

As to the question of punishment for contempt, on 3 July 1998 Mr Connell came before this Court of his own volition, but arising out of my direction to the sheriff to deliver him to the Court to be given an opportunity to purge his contempt. On that day, he gave an undertaking to this Court that he would remove the building and the building materials by midnight on 17 July 1998. I was satisfied on that day and I am still satisfied that he knew what that undertaking meant and he knew that if he did not comply with it, then the warrant would be executed.

This morning a number of matters have been put before the Court. The affidavit of Stephen Gow, who is a council officer, has been read. He deposes to his inspection of the site on 18 July 1998. Mr Gow says that he observed secondhand building materials comprising relocatable dwellings and materials associated with them stored on the northern part of the site. He also observed that a dwelling was erected at the southern end of the site. In relation to the secondhand building materials stored at the northern end of the site, he observed that some windows and doors had been removed since his last inspection. In relation to the dwelling at the southern end of the site, he observed that some windows, doors and hot water systems had been removed since he last inspected the site, some of the roofing iron had been dismantled and was propped up against the northern side of the building, and the electricity supply appeared to have been disconnected. As exhibits to his affidavit, there were two photographs, numbered SG1 and SG2, showing the building and the secondhand building materials appearing on the site. Indeed, there is no doubt that that is so because Mr Connell does not deny it but instead seeks to put before the Court a number of explanations as to why he did not comply with his undertaking and thereby purge his contempt.

This is yet another occasion on which Mr Connell has put before this Court matters which are illogical, unfounded, and not based on any evidence. I do not accept them. He contended that he was unable to comply with the orders of the Court and with his undertaking because of a medical condition, said to be lower back pain. He sought to tender a medical certificate and in the light of an objection to it, I rejected the tender.

Mr Connell gave evidence from the witness box. He stated that he went to a doctor on 5 July 1998 and was diagnosed with having lower back pain. Nonetheless, he seemed to have recovered somewhat, because he stated in the witness box that he went to the site with his brother and one other person. They set about complying with the Court’s order but they were impeded in doing so, so Mr Connell said, by council officers or a council officer. Mr Connell stated that he was also impeded by the fact that on 17 July 1998, the Federal Court sequestrated his estate and declared him to be bankrupt. His evidence was that he was contacted by the associate to Justice Sackville in the Federal Court on Thursday, 16 July 1998 and told that judgment would be delivered the next morning. He was in communication with the associate the next day, 17 July 1998, and was told that the judgment had been given.

His evidence about the council officer is that somebody - he thinks it was a council officer - was sitting in a car watching the site some days before Friday 17 July 1998. On Friday, 17 July 1998, a person came to him and said: “I am a council officer and you cannot demolish these buildings because the Federal Court has made a bankruptcy order against you”. Mr Connell says he was therefore impeded from complying with the orders of this Court and with his undertaking.

I do not accept any of those comments. Mr Connell had an opportunity, which I gave him, to purge his contempt and he has not done so. The evidence is clear that the secondhand building materials and the building still remain on the site.

Mr Connell seems to have exercised some right of appeal because it appears that this morning he filed in the Court of Appeal a notice of appeal, the original of which has been produced to the Court. Mr Connell is entitled to exercise whatever rights are available to him, but a notice of appeal does not operate as a stay. It is consistent with Mr Connell's behaviour in this whole matter that at the last moment he endeavoured to escape the consequence of his actions by taking further action, which he hopes will prevent this Court from making orders against him.

The time for those steps has come to an end. I propose therefore to revoke the suspension of the warrant for committal. The warrant for committal was suspended to 5.00 pm today, 20 July 1998. The only order that I need to make is to revoke its suspension.

I should make it clear to you, Mr Connell, that you have a time to purge your contempt at any time in the three months of the sentence imposed upon you. If you do so, then you can make arrangements for the Governor of the correctional centre to bring you back here and you can apply to have your sentence remitted. Until that happens and until the orders of this Court are complied with, the punishment will be in force.

I revoke the suspension of the warrant for committal.

I stand the notice of motion over until 3 August 1998 at 9.30 am.

I reserve the question of costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate