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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armidale City Council v Ross Connell

Details

AGLC: Armidale City Council v Ross Connell [1998] NSWLEC 12
Case: [1998] NSWLEC 12
Decision Date: 07/20/1998

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Armidale City Council v Ross Connell was heard by Pearlman J. The primary dispute involved the enforcement of a court order for the removal of a building and associated materials from a site in Madgwick Drive, Armidale, which Mr Connell had failed to comply with. The council sought to enforce the order, leading to proceedings against Mr Connell for contempt.

The legal issues before the court included the enforcement of a court order, the contempt of court proceedings, and the implications of Mr Connell's failure to comply with the order despite an undertaking to do so. Additionally, the council sought to be substituted for Mr Connell in carrying out the removal order.

Pearlman J began by addressing the notice of motion from the council to be substituted in executing the removal order. The judge decided to stand the motion over, indicating that the court would revisit the matter at a later date. Regarding the contempt of court, the judge found that Mr Connell had failed to comply with the court’s order and his own undertaking to remove the building and materials by the specified date. Despite Mr Connell's various excuses, including a claim of lower back pain and interference by council officers, the judge found these explanations unconvincing and rejected them. Consequently, the judge revoked the suspension of the warrant for committal, indicating that Mr Connell could still purge his contempt by complying with the order within the specified time. The judge also stood the notice of motion over until a later date and reserved the question of costs.

This decision underscored the importance of adhering to court orders and the consequences of failing to do so, as evidenced by the revocation of the suspension of the warrant for committal. The court emphasized the need for compliance with its orders and left the door open for Mr Connell to avoid further punishment by fulfilling the court’s directives.

Orders