Armidale Local Aboriginal Lands Council v Moran - [2020] NSWSC 442

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Armidale Local Aboriginal Lands Council v Moran [2020] NSWSC 442
Hearing dates: 11 and 13 December 2019
Date of orders: 13 December 2019
Decision date: 23 April 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The defendant, Kerry Moran, be discharged and released from the correctional centre where she is presently imprisoned.
(2) For the purpose of giving effect to order 1, revoke the sentence warrant dated 5 December 2019 in relation to the defendant's imprisonment.
(3) I note that Kerry Moran is to be released immediately.
(4) I note that Kerry Moran undertakes not to re-enter the property the subject of the earlier contempt.

Catchwords: CONTEMPT — criminal contempt — breach of orders — application for discharge from contempt — evidence of change in circumstances — application granted — applicant to be released from correctional centre
Legislation Cited: Supreme Court Rules 1970 (NSW)
Federal Court Rules 2011 (Cth)
Cases Cited: Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118
Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139
Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133
Armidale Local Aboriginal Lands Council v Moran (No 2) [2019] NSWSC 1739
Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563; [2015] FCA 1103
CJ v Flintshire Borough Council [2010] 2 FLR 1224; [2010] EWCA Civ 393
in Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280
Prothonotary v A [2017] NSWSC 495
Thunder Studios Inc (California) v Kazal (No 6) (2017) 356 ALR 238; [2017] FCA 1573
Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262
Category: Principal judgment
Parties: Kerry Moran (Applicant)
Armidale Local Aboriginal Lands Council (Respondent)
Representation:
Counsel:
J Styles (Applicant)
D Kell SC (amicus curiae)
Solicitors:
Aboriginal Legal Service (Applicant)
Crown Solicitor’s Office (amicus curiae)

File Number(s): 2018/213158
Publication restriction: Nil

Judgment

Whilst sitting as duty judge on 11 December 2019 an ex parte application was made for expedition of the hearing of a notice of motion seeking, on Ms Moran’s behalf, discharge from a contempt. The basis of the expedition was that early discharge from a prison sentence for contempt was sought. That sentence expired on 18 December 2019 and if the matter was not dealt with urgently, the motion would be rendered futile.
I granted expedition and listed the notice of motion for hearing on Friday 13 December 2019.
Ms Moran was represented by Mr Styles from the Aboriginal Legal Service (“ALS”). The Crown Advocate, Mr Kell SC, appeared amicus curiae instructed by Mr Thomson of the Crown Solicitor’s Office.
I made orders immediately upon completion of the short hearing, discharging and releasing Ms Moran from the correctional centre where she was at that time imprisoned. I also revoked the sentence warrant that put her there, noted that she was to be released immediately and…

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.

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Details

Case: [2020] NSWSC 442
Decision Date: 23 April 2020

CaseChat Overview and Summary

The parties involved in the matter of Armidale Local Aboriginal Lands Council v Moran were the Armidale Local Aboriginal Lands Council and the individual respondent, Moran. The dispute centred around a claim of criminal contempt brought against Moran for allegedly breaching specific court orders. The case was heard in the Land and Environment Court of New South Wales, where the court was required to decide on the application for Moran's discharge from the contempt of court charges. The central legal issue revolved around whether the court should grant the application for discharge based on evidence of a change in circumstances since the original contempt order was made. The court had to consider the principles of contempt and the appropriate circumstances under which an application for discharge should be granted.

In assessing the application, the court meticulously examined the evidence presented regarding any changes in Moran's circumstances since the original order was issued. The court recognised that the principles governing contempt of court are stringent, but also acknowledged that the law allows for flexibility in exceptional cases. It was determined that the evidence provided demonstrated a significant change in circumstances that warranted the court's consideration for granting the application. The court concluded that the applicant had met the necessary threshold to warrant a review of the original contempt order and that there were justifiable grounds for discharge.

Following the evaluation of the evidence and the principles of contempt law, the court ruled in favour of granting the application for discharge. The decision was based on the finding that the changed circumstances provided a valid basis for reconsideration of the contempt order. As a result, Moran was to be released from the correctional centre. The court's decision underscored the importance of ensuring that contempt orders are applied fairly and justly, taking into account any subsequent developments that might affect the original circumstances of the case. This ruling highlights the court's commitment to the principles of justice and the flexibility inherent in contempt law when warranted by changed circumstances.

Orders