Athens v Randwick City Council - [2005] NSWCA 317

No judgment structure available for this case.

Reported Decision:
64 NSWLR 58

Court of Appeal

CITATION:
Athens & Anor. v. Randwick City Council [2005] NSWCA 317
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
10 - 12 August 2005

JUDGMENT DATE:

16 September 2005

JUDGMENT OF:
Hodgson JA at 1; Santow JA at 128; Tobias JA at 141

DECISION:
Appeal dismissed with costs

CATCHWORDS:
PROCEDURE - CONTEMPT OF COURT - JUDGMENTS AND ORDERS - Construction of court orders - Use of extrinsic material - Need for certainty - Relevance of prejudice where alleged uncertainty minor - Applicability of criminal procedure to contempt proceedings - EVIDENCE - Exclusion of evidence improperly obtained - Conversations with persons encountered on premises during execution of search warrant - Whether improperly obtained - Whether inadmissible as hearsay - Whether admissible as statement of intention - Cross-examination of officer of company on return of subpoena to company - Whether part of evidence in the proceedings.

LEGISLATION CITED:
Evidence Act 1995 ss.64, 72, 138

CASES CITED:
Attorney-General v. Punch Limited [2003] 1 AC 1046
Australian Consolidated Press Limited v. Morgan (1965) 112 CLR 483
Australian Energy Limited v. Lennard Oil Limited [1988] 2 QdR 230
Australian Energy Ltd v Lennard Oil Ltd [1988] 2 QdR 230 at 232
Bankstown City Council v. Allamdo Holdings Pty. Ltd. [2004] NSWCA 325, 135 LGERA 312
Caruso v. Holtby [1999] WASC 39
Construction, Forestry, Mining & Energy Union v. BHP Steel (AIS) Pty. Limited (2003) 196 ALR 350
Coward v. Stapleton (1953) 90 CLR 573
Dobson v. Morris (1975) 4 NSWLR 681
Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (Santow J, SCNSW, 12 November 1997, unreported)
Environment Protection Authority v. Alkem Drums Pty. Limited (2001) 113 LGERA 130
Ex Parte Graham, Re Dowling (1968) 88 WN(Pt.1)NSW 270
Harris v. Harris [2001] 2 FLR 895
Johnson v. Miller (1937) 57 CLR 467
Kirkpatrick v. Kotis [2004] NSWSC 1265
Kwikspan Putlin System Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4602
Lewis v. Nortex Pty. Limited [2002] NSWSC 1064
McNair Anderson Associates Pty. Ltd. v. Hinch [1985] VR 309
Microsoft Corporation v. Marks (No.1) (1996) 69 FCR 117
Prout v. La Rosa [2005] WASCA 98
Re A Bankrupt: Rudkin-Jones v. The Trustee of the Property of the Bankrupt [1965] 109 Sol.Jnl. 334.
Repatriation Commission v. Nation (1995) 57 FCR 25
The Commissioner of Water Resources v. Federated Engine Drivers & Firemen's Association of Australasia Queensland Branch [1987] 2 QdR 385
Trade Practices Commission v. Arnott's Limited (No.2) (1989) 21 FCR 306
Witham v. Holloway (1995) 183 CLR 525
Wysznski v. Bill [2005] NSWSC 110

PARTIES:
Peta Athens - first appellant
Athens Holdings Pty. Ltd. - second appellant
Randwick City Council - respondent

FILE NUMBER(S):
CA 40417/04

COUNSEL:
Mr. D.A. Buchanan SC for appellants
Mr. D. Officer QC with Mr. A.J. Thompson for respondent

SOLICITORS:
Holding Redlich, Sydney for appellants
Bowen & Gerathy, Sydney for respondent

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC40097/00

LOWER COURT JUDICIAL OFFICER:
Cowdroy J

CA 40417/04
LEC 40097/00

HODGSON JA
SANTOW JA
TOBIAS JA
Friday 16 September 2005

ATHENS & ANOR. V. RANDWICK CITY COUNCIL

Headnote

FACTS
On 8 December 2000 in proceedings brought by Randwick City Council (the Council), Mr Athens and Athens Holdings (the appellants) were ordered by the Land & Environment Court to remove sliding doors from garages on the premises at 40 Coogee Bay Road, Coogee, and restore the garages for the purpose of car parking.

On 1 June 2001, the Council obtained orders in the Land and Environment Court against the appellants restraining them from using the same premises for the purpose of Backpackers Accommodation from 31 March 2002 onwards.

On 3 September 2003 the Council applied to the Land & Environment Court for the appellants to be punished for contempt in respect of these two orders.

At the hearing the Council cross-examined Mr Athens as an officer for Athens Holdings in regard to failure to produce certain subpoenaed records.

On 29 April the appellants were found guilty of the charges and fined accordingly.

The appellants appealed on issues relating to the certainty and enforceability of the orders, procedural and evidential issues, and cross-examination of Mr Athens on non-production of subpoenaed documents.

HELD
The term “Backpackers Accommodation” in the order was intended to engage the definition of “backpacker accommodation” contained in the relevant LEP. In construing an order, it is appropriate to consider the context in which it was given. In circumstances where the Land & Environment Court had jurisdiction only to enforce the terms of the LEP, the appellants had conceded they were in breach of the LEP at the hearing of first instance, and an appeal was brought against the order in which no issue was raised as to its interpretation, the order was sufficiently clear to be enforceable: Kirkpatrick v Kotis [2004] NSWSC 1265 considered; Commissioner of Water Resources v Federated Engine Drivers & Firemen’s Association of Australasia Queensland Branch [1987] 2 QdR 385, McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 distinguished.

The absence of particulars as to the times and manner of breach of the order was not objectionable, because the breach was not constituted by particular occurrences or capable of being committed in a variety of ways, but was rather the use of a building for a specific purpose: Johnson v Miller (1937) 57 CLR 467 , Ex Parte Graham, Re Dowling (1968) 88 WN(Pt.1)NSW 270 distinguished.

The procedure in contempt proceedings is not the same as in a criminal trial: Witham v Holloway (1995) 183 CLR 525. It was within the primary judge’s discretion to allow an address in reply and the re-opening of the Council’s case for the purpose of further evidence.

The cross-examination of Mr Athens was explicitly made in a matter that had been stood over by the Registrar, and was not part of the contempt proceedings: Trade Practices Commission v Arnott’s Limited (No.2) (1989) 21 FCR 306, Lewis v Nortex Pty Limited [2002] NSWSC 1064 applied. The evidence could not be used against the appellants unless tendered or unless an explicit order was made to that effect.

On the evidence properly before the primary judge it was proved beyond reasonable doubt that the premises were used for backpacker accommodation.

The order of 8 December 2000 required the removal of the glass sliding doors from the entrance of the garages and the restoration of the garages for the purpose of car parking, and that this situation be maintained thereafter. Although maintenance of this situation was not explicit in the order, it was plainly implied and there was no relevant uncertainty that rendered it unenforceable.

ORDERS

**********

CA 40417/04
LEC 40097/00

HODGSON JA
SANTOW JA
TOBIAS JA

Friday 16 September 2005

ATHENS & ANOR. V. RANDWICK CITY COUNCIL

Judgment

1 HODGSON JA: On 8 December 2000, the Land & Environment Court by consent made the following orders in relation to premises at 40 Coogee Bay Road, Coogee:

3. The First and Second Respondents, their servants, agents or assigns, remove the sliding glass doors to Garages 9 and 10 and restore them for the purpose of carparking pursuant to Order 7 of the Application herein.

2 The First and Second Respondents referred to in these orders were the first appellant (Mr. Athens) and the second appellant (Athens Holdings); and Order 7 referred in the first of those orders was an order sought in an application by the respondent (the Council) that “the Respondents be ordered to remove sliding glass doors to Garages 9 and 10 and to restore them for the purposes of carparking”.

3 On 1 June 2001, after a contested hearing in the Land & Environment Court between the Council on the one hand and Mr. Athens and Athens Holdings on the other, Sheahan J made the following orders:

1. The first and second respondents are hereby restrained from using the premises at 40 Coogee Bay Road, Coogee, for the purpose of Backpackers Accommodation.

4 An appeal from those orders to the Court of Appeal was dismissed on 15 April 2002.

5 By Notice of Motion dated 3 September 2003, the Council applied to the Land & Environment Court for Mr. Athens and Athens Holdings to be punished for contempt. The Statement of Charge against Mr. Athens was as follows:

Particulars

Using the premises at 40 Coogee Bay Road, Coogee for the purpose of backpackers accommodation after 31 March 2002.

Particulars

Failing to remove the sliding doors to garages 9 and 10 and restore the garages for the purpose of car parking.

6 Mr. Athens and Athens Holdings defended the charge; and after a hearing, Cowdroy J on 29 April 2004 found the charges proved against each of them. On 4 June 2004, he made the following orders:

1. Each of the first and second respondents is adjudged guilty of a wilful breach of order 3 made by this Court on 8 December 2000 by failing to remove the glass doors to garages 9 and 10 of the premises at 40 Coogee Bay Road Coogee and by failing to restore such garages for the purpose of carparking and that such breach has continued from 11 May 2002 to 29 April 2004;

2. Each of the first and second respondents is adjudged guilty of a wilful breach of order 1 made by this Court on 1 June 2001 by using the premises at 40 Coogee Bay Road Coogee for the purpose of backpacker accommodation and that such breach occurred for the period from 11 May 2002 to 9 April 2004;

3. ORDER that the first respondent be fined the sum of $20,000 and the second respondent be fined the sum of $10,000 in respect of the breach described in order 1 above of order 3 made by the Court on 8 December 2000;

4. ORDER that the respondents each be fined a continuing daily penalty of $500 per day in respect of any continued breach of order 3 made by the Court on 8 December 2000;

5. ORDER that the first respondent be fined the sum of $30,000 and the second respondent be fined the sum of $15,000 in respect of the breach described in order 2 above of order 1 made by the Court on 1 June 2001;

6. ORDER that the respondents pay the applicant's costs of the proceedings in proportion two-thirds by the first respondent and one-third by the second respondent;

7. ORDER that the exhibits are to remain with the Court file pending further order;

ORDER

7 The appellants appeal against orders 1-6.

DECISIONS OF PRIMARY JUDGE

8 On 22 April 2004, the primary judge considered a submission on behalf of the appellants that ss.28, 38 and 160 of the Criminal Procedure Act 1986 applied to the case, so that the Council should not be permitted to call any case in reply or to address in reply. That contention was rejected by the primary judge.

9 On 27 April 2004, the primary judge considered an application by the Council to reopen its case for the purpose of tendering affidavits of service of the orders on which the proceedings were founded. The application was made when the primary judge was in the course of delivering what otherwise would have been a final judgment in the case, in which the primary judge had indicated to the effect that he would dismiss the proceedings because the Council had not proved knowledge of the orders. The primary judge acceded to the application, and affidavits of service of the orders were then admitted into evidence. The deponents were cross-examined, but in his main judgment in the case the primary judge found that service of the orders was proved.

10 In his main judgment in the case, given on 29 April 2004, the primary judge held that the Land & Environment Court had power to punish for contempt, referring to the Land & Environment Court Act ss.20 and 67. He said that the Court would have to be satisfied that there was wilful disobedience of court orders, and that the proof had to be beyond reasonable doubt, although the proceedings were not of a criminal nature. As noted above, he found that the orders had been served on Mr. Athens and Athens Holdings.

11 The primary judge said that Mr. Athens was the sole director and shareholder of Athens Holdings. The Court of Appeal was informed that in fact he held nine out of ten of one class of shares and 99 out of 100 of another class of shares, with the other share in each case being held by a person with the same surname; but there is no suggestion that anything turned on this discrepancy.

12 The primary judge held that “back packers accommodation” in the charge had their ordinary meaning, not a meaning according with a definition contained in the Randwick Local Environment Plan 1998 (the LEP); and thus meant accommodation for backpackers, according to the dictionary definition of the latter term, which the primary judge took to be “a person who travels with clothes and personal belongings in a rucksack”.

13 The primary judge found that the premises were used for backpackers accommodation from 11 May 2002 to 9 April 2004 and that during this period the appellants were wilfully disobeying the Court order of 1 June 2001. His judgment included the following reasons:

68 On the evidence before the Court it is clear that persons who answer that description have been residents of the premises during the period referred to in the charge. The evidence establishes that rooms within the premises were used for the purpose of dormitory style accommodation. This fact is not of itself sufficient, however when the evidence of the blue Collins diary and Ms Thompson is cross referenced, it is established that a substantial number of the residents were occupying the premises for short stays and were travellers. The photographs tendered in evidence showed rucksacks or backpacks which the Court infers belonged to such persons. The evidence also establishes that many such residents were tourists from foreign countries who possessed working holiday visas. The Court is satisfied that such evidence establishes that the premises were used for the purpose of backpackers accommodation. Conversations held with council officers with some of the residents simply confirm that they were travellers who were using the premises for short term accommodation.

69 The second respondent caused brochures to be published advertising the subject premises in “The Word Backpacking Australia”. The evidence establishes that the second respondent had paid for the advertisement in “The Backpack Guide to Australia” during the period referred to in the charge . Although the word “backpacker” does not appear in the later advertisements, the brochure is obviously directed to a limited market, namely those persons who are seeking accommodation generally sought by backpackers. Whilst such evidence by itself, would not be sufficient for the Court to be satisfied that order 1 made on 1 June 2001 had been breached, such evidence, taken into consideration with the diary entries, confirms the Court’s finding that the premises were used for such purpose.

70 Exhibit “T” comprises a bundle of undated pro forma statements which were apparently signed by residents when booking into the premises. They purport to state that the person is not a tourist and that the occupation at the premises is for an initial trial period. The trial periods vary from 1 night to 1 week for the express purpose of enabling the person to determine whether “ the premises are satisfactory to me as a permanent lodger ”. The Court does not accept that such records are sufficient to establish that the resident was not a backpacker.

71 Subpoenas were issued to the respondents requiring production of records recording bookings from 11 May 2002 to the date of the subpoena (19 February 2004), tax returns, letters of instruction concerning the preparation of the website and correspondence with publishers of travel magazines. No records relating to bookings were produced including the registers entitled “Nightly”, “Check In” and “Weekly” which had been observed by Mr Graham nor was the original blue Collins diary produced. The respondents failed to provide a satisfactory explanation for their non-production. In these circumstances the Court infers that such records would have contained evidence of continued bookings and guest registration.

72 Exhibit “S” is a receipt book which was tendered on the first day of the resumed hearing commencing 20 April 2004. The period covered by the receipt book is for the period 17 February 2004 to 9 April 2004. An attempt has been made to obliterate the word “Backpackers” from the original receipts. However such word is clear on the carbon copy of each receipt. The periods of accommodation range from one night to two weeks.

14 The primary judge found the second charge, concerning the garages, to be not ambiguous, and that orders 3 and 4 made on 8 December 2000 were to be read together.

15 He found that the sliding doors had not been removed and that the garages had not been restored for the purposes of car parking because they were used for storage; and he found that the appellants had wilfully breached order 3 made on 8 December 2000 and that this breach continued from 11 May 2002 to the present.

GROUNDS OF APPEAL

16 The appellants rely on the following grounds of appeal:

1. His Honour erred in failing to stay proceedings on the Respondent's notice of motion until it gave the Appellants adequate particulars of its charges.

(f) was of a Contempt particularised as having concluded as at 15 October 2003, while his Honour ruled that the charge was of a Contempt concluding as at 28 January 2004, and/or
(g) did not charge Contempt of Court because it alleged breach of something which was not an order made by the Land and Environment Court on 1 June 2001.

3. His Honour erred in finding the second charge of Contempt proved against each Appellant in the circumstance that it was unfair because it was uncertain.

4. His Honour erred in construing the first charge against each Appellant as having been amended by the contents of the letter to the solicitors for the Appellants from the solicitors for the Respondent dated 15 October 2003.

5. His Honour erred in construing the first charge against each Appellant as being of conduct which continued until the date of his judgment in Randwick City Council v Athens and Anor (No 1) [2004] NSWLEC 23.

Randwick City Council v Athens and Anor (No 1

Particulars

7. His Honour erred in finding the first charge of Contempt proved against each Appellant without considering whether, or making any finding that, the conduct alleged had taken place continuously after 31 March 2002.

Particulars

11. His Honour erred in receiving evidence of references to the Appellants' premises or business on websites not owned or controlled by the Appellants' (third party websites) in breach of the hearsay rule.

12. His Honour erred in ruling as irrelevant the question as to whether evidence obtained on 16 January 2003 as a result of execution of a search warrant was improperly obtained.

13. His Honour erred in ruling that, as the proceedings were not criminal proceedings, there was no substance to the Appellants' application that the charges be dismissed for lack of a prima facie case.

14. His Honour erred in permitting the Respondent to have an address in reply.

15. His Honour erred in the exercise of his discretion in allowing the Respondent to re-open its case.

16. His Honour erred in admitting into evidence affidavits tendered in the Respondent’s re-opened case -
(a) before they had been served upon the Appellants;
(b) when, in breach of the Court's directions given 25 September 2003, they had not been served upon the Appellants.

Particulars

Environmental Planning and Assessment Act

18. His Honour erred in finding the first charge of Contempt proved against each Appellant without giving reasons, or in the alternative adequate reasons, for finding that use of the premises for backpacker accommodation as defined by his Honour had continued from 11 May 2002 to 9 April 2004. .

18A. His Honour erred in finding
(a) that a brochure or advertisements was obviously directed to a limited market, namely those persons who are seeking accommodation generally sought by backpackers;
(b) that the advertisement of the premises for the purposes of "shared budget accommodation" implicitly advertised the premises for the purposes of accommodation which would be suitable, inter alia, for backpackers;
(c) that the signage relating to rates for accommodation, the layout of the rooms and the offers of services were consistent with the use of the premises as a backpackers hostel,
in the absence, respectively, of evidence as to -
(d) the existence or nature of such market,
(e) the types of accommodation which would be suitable for backpackers, or
(f) the features of a backpackers hostel with which signage relating to rates for accommodation, layout of the rooms and offers of services would be consistent.

Particulars
The Respondent's case relied upon a definition contained in the Randwick Local Environment Plan 1998 while his Honour relied upon a definition of "backpacker" contained in a dictionary.

Rockdale Municipal Council v Clark

20. His Honour erred in finding the first charge of Contempt proved against each Appellant in the absence of a finding that, on each day in respect of which the finding was made, each Appellant substantially used the premises for the prohibited purpose.

Particulars

22. In finding the first charge of Contempt proved against each Appellant his Honour erred in taking into account the periods of accommodation of residents of the Appellants' premises.

23. In finding the first charge of Contempt proved against each Appellant his Honour erred in taking into account that documents not in evidence, the possession of which he imputed to the Appellants, would have contained evidence of continued bookings and guest registration.

24. In finding the first charge of Contempt proved against each Appellant his Honour erred in taking into account a finding that many residents occupying the premises on 16 January 2003 were tourists from foreign countries who possessed working holiday visas or were travellers who were using the premises for short term accommodation.

Particulars

26. Alternatively, if his Honour considered and rejected the hypothesis consistent with innocence advanced by the Appellants, his Honour erred in failing to give reasons, or in the alternative adequate reasons, for rejecting the hypothesis.

Particulars

28. In the alternative, in finding the first charge proved against each Appellant, his Honour erred in drawing inferences adverse to the Appellants from their failure to give evidence.

29. His Honour erred in finding the second charge (alleging breach of the third order made by the Court on 8 December 2000) proved against each Appellant in the circumstance that the order alleged to have been breached was mandatory but the charge did not allege failure to comply within the time limited by the fourth order made by the Land and Environment Court on 8 December 2000.

30. His Honour erred in finding the second charge proved against each Appellant by taking into account evidence of things observed and events which occurred after the expiry of the time limited for compliance with the third order made by the Court on 8 December 2000.

31. His Honour erred in finding each charge of Contempt proved against each Appellant without finding either of them proved beyond reasonable doubt.

32. His Honour erred in sentencing the Appellants for the breach found to have occurred and to be continuing to occur of the third order made by the Court on 8 December 2000 after the time limited for compliance with that order had expired on 31 December 2000 .

33. His Honour erred in failing to give reasons, or in the alternative adequate reasons, for finding that the breach of the third order made by the Court on 8 December 2000 was continuing to occur as at 29 April 2004 and, if the finding was made as at the date of sentence, also as at that date, namely 4 June 2004.

34. His Honour erred in failing to give reasons, or in the alternative adequate reasons, for his order that the Appellants be fined in respect of any continued breach of the third order made by the Court on 8 December 2000.

35. His Honour erred in imposing a continuing daily penalty in respect of any continued breach of the third order made by the Court on 8 December 2000.

36. (abandoned)

17 I will consider in turn the following issues:

1. The construction of the “backpacker” order (grounds 2, 6, 19, 22).
2. Certainty of the first charge (grounds 1, 4, 5, 7).
3. Questions concerning admission of evidence (grounds 8, 9, 10, 11, 12).
4. Relevance of evidence (grounds 17, 18A, 22, 24).
5. Events of June 2002 (ground 21).
6. Use of evidence given concerning subpoena (grounds 23, 27, 28).
7. Questions of criminal procedure (grounds 13, 14, 15, 16).
8. Deficiency of evidence and/or reasons (grounds 7, 18, 20, 25, 26, 31).
9. Construction of consent order (grounds 30, 32).
10. Certainty of second charge (grounds 3, 29).
11. Deficiency of evidence and/or reasons concerning second charge (grounds 31, 33).
12. Sentences (grounds 32, 34, 35, 37).

1. CONSTRUCTION OF “BACKPACKER” ORDER

18 The order made on 1 June 2001 was made at the conclusion of contested proceedings arising from a class 4 application dated 30 June 2000, by which the Council had sought orders against the appellants, including an order that they “be restrained from using the premises at 40 Coogee Bay Road, Coogee for the purpose of Backpackers’ Accommodation”.

19 The applicable planning regime was the Randwick Local Environmental Plan 1998 (LEP) under which the subject land was zoned Residential 2B. The LEP contained the following definitions:

“Backpacker accommodation” is defined as “a building or place used for providing temporary accommodation for tourists whose principal place of residence is elsewhere and where communal kitchen and laundry facilities may be provided but which is not licensed …”.

“Bed and breakfast accommodation” means “a building which provides temporary accommodation for not more than 5 persons and where the owner of the building is a permanent resident”.

“Boarding house” is described as a building or place:
(a) where permanent accommodation facilities are provided to the residents of the building or place, and
(b) where meal and laundry facilities may be provided, and
(c) which is not licensed …
but … does not include a building or place elsewhere defined in this clause.

20 The use of land for bed and breakfast accommodation, boarding houses and serviced apartments was permissible in the Residential 2B zone with development consent; but use for backpacker accommodation was prohibited in that zone.

21 Before Sheahan J, Senior Counsel for the appellants conceded the following:

backpacker

accommodation

no approval

prohibited

22 Sheahan J rejected this submission, and made orders including the order set out in par.[3] of this judgment. It may be noted that the first order made by Sheahan J differed from the order sought by omitting the apostrophe after “Backpackers”; and also differed from the expression defined in the LEP by the use of capital letters and by the “s” at the conclusion of the word “Backpackers”.

23 The appellants appealed to the Court of Appeal, contending that Sheahan J failed to provide adequate reasons and erred in the exercise of his discretion, and also that further evidence showed that the material presented to Sheahan J concerning the attitude of neighbours was misleading. No point was raised by either side as to the exact wording of the order, and the Court of Appeal noted the appellants’ continuing concession that the property was used for “backpacker accommodation” and that the use was unapproved and prohibited. The order of the Court of Appeal was simply that the appeal be dismissed with costs.

Submissions

24 Mr. Buchanan SC for the appellants submitted that the order was not enforceable because it was not expressed in clear, certain and unambiguous language: Harris v. Harris [2001] 2 FLR 895 at 922-3 and cases there cited; Attorney-General v. Punch Limited [2003] 1 AC 1046 at [111]. The order was contrary to the well-settled rule that an order should be so expressed that a person to whom it was directed should be able by reading it and without more to know at once what it was that he must do or refrain from doing in order to comply with its terms: The Commissioner of Water Resources v. Federated Engine Drivers & Firemen’s Association of Australasia Queensland Branch [1987] 2 QdR 385 at 390. It was not permissible to look beyond the order to aid its construction: McNair Anderson Associates Pty. Ltd. v. Hinch [1985] VR 309 at 311-12, Re A Bankrupt: Rudkin-Jones v. The Trustee of the Property of the Bankrupt [1965] 109 Sol.Jnl. 334.

25 Mr. Buchanan submitted that these propositions were supported by Australian Consolidated Press Limited v. Morgan (1965) 112 CLR 483 at 503-4, 506, 515-16. In so far as the judgment of Barwick CJ at 491-2 was to the contrary, he was in the minority. In so far as Kirkpatrick v. Kotis [2004] NSWSC 1265 at [38]-[60] supported regard being had to surrounding circumstances to construe orders, this was limited to consent orders: cf. Rogers v. Wentworth (unreported, Court of Appeal, 18/4/88). In so far as Microsoft Corporation v. Marks (No.1) (1996) 69 FCR 117 at 143 and Wysznski v. Bill [2005] NSWSC 110 at [36] suggested that ambiguity does not aid an alleged contemnor unless, on at least one reasonable view, the contemnor is not in breach, and/or that ambiguity must carry a real risk of misleading a person bound by the order, these would be incorrect glosses on the principle. Any lack of precision permitted in cases of nuisance (Bankstown City Council v. Allamdo Holdings Pty. Ltd. [2004] NSWCA 325, 135 LGERA 312) was limited to nuisance, the justification being the existence of the possible ways in which nuisance could be committed.

26 Mr. Officer QC for the Council submitted that the rationale of all authorities was that the party bound should know what it is required by the Court order to do or refrain from doing. In this case, if the order is construed as involving the ordinary grammatical use of the words, the appellants would know that meaning. Alternatively, in this case regard could be had to context, particularly as the concession made by Senior Counsel before Sheahan J meant that considerations applied to this case similar to those applying to consent orders. Accordingly, regard could be had to the circumstance that these were class 4 proceedings and the Court’s jurisdiction was to restrain breaches of the Environmental Planning Assessment Act and planning instruments, indicating that the intention of the order was to restrain use as backpacker accommodation as defined in the LEP. In any event, the possible ambiguity did not matter, because the ordinary grammatical meaning adopted by the primary judge was more favourable to the appellants, in that it required, in addition to the elements contained in the LEP definition, proof that the residents used backpacks.

Decision

27 The construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. First, what does the order require, on its true construction? And second, is this sufficiently clear to the person affected by the order to support enforcement of that order against that person?

28 The first question may arise quite separately from the second question in proceedings other than proceedings alleging contempt. There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract: see Kirkpatrick at [38]-[45] and cases there cited. In my opinion, it is also plain that, in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings.

29 In a note on this question at 72 ALJ 117, it is stated that “in the case of real ambiguity extrinsic material such as the reasons for judgment may be considered”. However, in my opinion the ability to advert to other material is at least as wide as is stated in Repatriation Commission v. Nation (1995) 57 FCR 25 at 34, namely that “evidence of surrounding circumstances is admissible to assist in construction of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a ‘plain meaning’”; and cf. Australian Energy Limited v. Lennard Oil Limited [1988] 2 QdR 230 at 232, 233-4. However, in having regard to surrounding circumstances, it is in my opinion relevant to keep in mind that orders are generally framed with a view to their being self-contained and self-explanatory.

30 Approaching the relevant order in this case with these considerations in mind, in my opinion it is clear that the order was intended to engage the definition of “backpacker accommodation” in the LEP. The Court had no relevant jurisdiction to do any more than enforce terms of this planning instrument, and the relevant prohibited use was as “backpacker accommodation” as defined. The Court could possibly have made an order prohibiting some use that was narrower than the prohibited use, but it is not the case that use as backpacker or backpackers’ accommodation in the ordinary meaning of the words is in all respects narrower, in that the LEP has the additional requirement that the premises not be licensed under the Liquor Act. The concession made by Senior Counsel for the appellants was in terms of the words referred to in the LEP and was based on the LEP, and no consideration was given either by Sheahan J or the Court of Appeal to the minor variations that existed between the phrase as used in the application, the order, and the definition in the LEP. In my opinion, it is plain from these circumstances that the order on its true construction prohibited use as “backpacker accommodation” as defined in the LEP.

31 Because the matter under consideration here is the question of contempt by breach of the order, it is necessary also to consider the second question I identified. I accept the general principle that, to be enforceable, an order must be so expressed that the person affected knows, or plainly should know, what he or she is required to do or refrain from doing.

32 However, in my opinion, in determining whether an order is so expressed, it is not appropriate to close one’s mind altogether to context. For example, if an order refers to a named person or a named address, and it so happens that there are a number of persons with that name or a number of places with that address, the order will be sufficiently clear if the circumstances of the case, well known to the person affected by the order, make it clear which person or which place is being referred to: cf. Kirkpatrick at [55].

33 Whether or not one can have regard to the judgment in considering this second question may depend on circumstances. In this case, there are the following relevant circumstances. First, the order was made at first instance after a contested hearing in which Senior Counsel for the appellants made the concessions referred to above. Second, an appeal was brought on the instructions of the appellants against these orders, indicating plainly that the appellants must have received advice as to the terms of the orders made against them and also advice concerning their effect. Third, the matter was contested on appeal on the assumption that the orders were against the use prohibited by the LEP, with the concession made at first instance being maintained. Fourth, the result of the appeal was to leave the orders made at first instance standing unaltered.

34 In those circumstances, the matters to which I had regard in approaching the first question were well-known to the appellants, and in my opinion the appellants’ understanding of the meaning of the orders can be safely approached on that basis. In those circumstances, in my opinion the appellants knew, or plainly should have known, that the order had the effect of requiring them not to use the premises as backpacker accommodation as defined in the LEP.

35 I do not think the cases relied on by Mr. Buchanan, including Commissioner of Water Resources, McNair Anderson and Re A Bankrupt weigh against this conclusion, or make it a defect of the order that it has to be understood by reference to another document, that is the LEP. In Commissioner of Water Resources, the order in question required reference to the terms of a contract which was not in possession of the persons affected by the order, and also determination whether, by refusing to work in accordance with their own contracts of employment, they were procuring a breach of that other contract. In this case, the relevant terms of the definition in the LEP are set out in the judgment given and appealed against in the circumstances set out above. In the other two cases, the statements relied on were obiter, and not expressed in absolute terms.

36 It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.

37 In my opinion also, if the only ambiguity on the face of the orders is between two meanings, and the recipient is shown to have breached the order whichever of the two meanings is adopted, that may in any event be sufficient to establish contempt, at least unless it appears that the breach may have been due to uncertainty as to what steps were required.

38 In the present case, the primary judge decided that there was a wilful breach of the order construed in accordance with the ordinary meaning of the relevant phrase. I will consider the significance of this in connection with the eighth issue.

2. CERTAINTY OF FIRST CHARGE

39 As stated above, the order concerning use of the premises for backpacker accommodation was stayed to 31 March 2002. On 5 March 2002, the Land & Environment Court extended this date to 15 April 2002. Also, a concession was given by the Council extending the time for compliance to 10 May 2002.

40 By letter dated 9 October 2003, the solicitors for the appellants sought particulars of the first charge, namely:

41 The Council’s solicitors replied by letter dated 15 October 2003, giving the following relevant particulars:

It is alleged that the (appellants) were using the premises for the purpose of backpacker accommodation after 31 March 2002 and continuing up to the present time.

42 No further particulars were provided, but evidence proposed to be led by the Council was served in advance of the hearing.

Submissions

43 Mr. Buchanan submitted that a charge must be specific and clearly stated: Coward v. Stapleton (1953) 90 CLR 573 at 579-80. The charge as stated and particularised was ambiguous or uncertain as to the meaning of “backpacker accommodation” or “backpackers accommodation”. It was ambiguous or uncertain as to what aspects of use amounted to the proscribed use. No particulars were given as to the manner of offending: cf. Ex Parte Graham, Re Dowling (1968) 88 WN(Pt.1)NSW 270. There were no particulars as to the way in which people were accommodated or what people were accommodated who should not have been accommodated, who was accommodated, when, how long, etc. The charge as particularised was uncertain as to time. Having regard to the extension of the stay until 15 April 2002 and Council’s concession applying to 10 May 2002, there was uncertainty as to the time of commencement. There was uncertainty as to the time of conclusion, in circumstances where the particulars alleged continuance to 15 October 2003, while the primary judge treated the charge as affecting conduct up to 28 January 2004. There was also duplicity in the charge. Mr. Buchanan relied on Johnson v. Miller (1937) 57 CLR 467 at 486-7, 489.

44 In so far as it was put for the Council that no prejudice was shown or suggested, Mr. Buchanan submitted that it was not for a person accused of an offence to have to show that uncertainty of a charge actually caused prejudice.

Decision

45 I accept that, if the terms of a charge are sufficiently uncertain, there is no need for a person accused of an offence to show that he or she has been prejudiced. However, where an alleged uncertainty is minor or otherwise such that prejudice is unlikely, it is in my opinion relevant to address the question of prejudice; and if an accused person is unable to point to any realistic possibility of prejudice, that may lead the Court to regard the alleged uncertainty as immaterial.

46 The primary judge held that the particulars given by the Council meant that the charge was that the premises were used as backpackers’ accommodation in the ordinary meaning of the words, because the particulars had made no reference to the LEP. Plainly, it would have been better if the particulars had referred to the LEP and set out the terms of the definition; but for the reasons given earlier, in my opinion the proscribed use was use as backpacker accommodation as defined in the LEP, and the appellants knew or should have known this. The absence of specific reference to the LEP in the particulars does not, in my opinion, introduce significant uncertainty into the charge; and where there is no suggestion of actual confusion or prejudice to the appellants in conducting their defence, I do not consider that any uncertainty is material.

47 In my opinion also, there is no ambiguity as to what aspect of use amounted to the proscribed use. The offence is not constituted by particular occasions of provision of temporary accommodation for tourists, but by use of the building for that purpose. It is not a case where an offence is committed in relation to each person so accommodated, and as I will indicate, the case is therefore very different from Johnson. Nor is it the case that the offence can be committed in a variety of different ways, as is the case with the offence of negligent driving, considered in Ex Parte Graham. Furthermore, the service of evidence to be relied on in advance of the hearing meant that the appellants were in no doubt as to the substance of the case they had to meet.

48 The offence charged was a single offence of using the premises as backpacker accommodation, particularised as being for the period from 31 March 2002 and “continuing up to the present time”. The particulars were given on 15 October 2003; and at that time the Council could not have alleged a breach occurring after that date. But the allegation of the breach as “continuing up to the present time” would suggest an intention to allege an ongoing breach.

49 There is the theoretical possibility of uncertainty arising from the statement of a commencement date of 31 March 2002, when the order in question was stayed until 15 April 2002 and the Council gave the appellants until 10 May 2002 to conform; and also as to the concluding date, ie whether it should be taken as 15 October 2003 or the date of the hearing. However, in the absence of any suggestion of actual confusion or prejudice, in my opinion these possibilities are immaterial.

50 The fact that the order was stayed until 15 April 2002, and that the Council gave the appellants until 10 May 2002 to conform, means that the Council must have been unable to prove the offence exactly as charged and particularised, that is, commencing on 31 March 2002. But in my opinion, the circumstance that the Council could not prove that the offence continued for the whole of the period alleged in the charge and particulars would not prevent a finding that the offence was proved to the extent of the period actually proved: cf. Caruso v. Holtby [1999] WASC 39, Prout v. La Rosa [2005] WASCA 98. Again, if some actual confusion or prejudice could be suggested, the position might be different, but that is not so in this case.

51 The case is very different from Johnson. In that case, an offence was committed each time a person was seen coming from a licensee’s premises on a Sunday outside certain hours, unless the licensee could prove the person was on the licensed premises for a purpose not contrary to the provisions of the licensing statute or without the knowledge or consent of the licensee. In those circumstances, plainly there was a separate offence in relation to each person seen, and the identification of the person the subject of the charge was essential in order that the accused have the opportunity to address the exception to the offence. Accordingly, to charge a licensee in terms that could extend to a number of unidentified persons involved both duplicity and unfair uncertainty in the expression of the charge. For reasons given above, neither consideration applies in this case.

3. ADMISSION OF EVIDENCE

52 The primary judge summarised the evidence given in the case as follows:

Council’s Evidence
Allan Donald Graham
7 Mr Graham, a Senior Planning Environmental Compliance Officer engaged by the council, testified of an attendance he made to the arrival hall of Sydney Airport on 16 December 2002 where he obtained brochures entitled “The Word Backpacking Australia” and “Backpack Guide to Australia”.

“The Word Backpacking Australia”

Where to Stay

Aegean

“The Aegean Lodge”

Shared Budget Accommodation

Dorms from $14 per night on a weekly discount.

9 Mr Graham attended the premises on 16 January 2003 and conducted a search with other officers of the council pursuant to a search warrant issued by the Waverley Local Court.

Aegean Rates

guys

girls

11 Mr Graham took numerous photographs of the interior including of the entry hall and reception area. A brochure stand contained a variety of pamphlets advertising various services available to backpackers. A brochure advertising the “ Aegean Lodge ” at the address of the premises was available. The brochure describes the premises, is decorated with flags of various nations and includes a photograph of a mini-bus bearing the name “ The Aegean Coogee Bay Rd Backpackers ”.

12 Records were also photographed by Mr Graham of reservations which were booked and confirmed. One booking made on or about 24 May 2002 was made in respect of dormitory style accommodation for a period of 3 nights. Another booking made on 11 June 2002 for accommodation in one dormitory on 14 June 2002.

13 The photographs record several registers found in the front reception of the premises. The registers were entitled “Nightly” and “Check Ins”. A blue Collins Diary for 2003 was inspected which contained the name and address of residents. The records contained within the blue Collins Diary showed that many of the addresses of the guests were located in countries outside Australia.

14 On his search Mr Graham inspected and took photographs of garages 9 and 10. Each photograph shows that sliding glass doors remained in position in their tracks behind roller shutter doors. Each garage contained substantial quantities of furniture.

“Aegean”.

“backpack, backpackers and backpacking”.

Aegean Backpackers HAS MOVED TO A NEW LOCATION. THIS PAGE WILL REFRESH TO OUR HOMEPAGE IN 10 SECONDS.

16 Mr Graham went to the Aegean webpage and found an advertisement for “ The Aegean Lodge Licenece (sic ) Boarding House ”. The webpage displayed international flags and advertised a shuttle pick up bus from the airport.

“Backpacker Information Sheet of Backpacker Accommodation”

18 On 16 July 2003 a further search on the internet was made by Mr Graham of the term “Aegean Lodge”. Numerous listings on third party sites of the Aegean Lodge were under backpacker related links. Many of the listings of the premises were displayed as the “Aegean Backpackers” on some sites.

19 On 17 July 2003 Mr Graham again attended at Sydney International Airport and obtained a brochure from a stand at the Information Desk located on the ground floor of the International Terminal. At p 63 of the brochure he observed “The Aegean” was listed.

Heather Maria Thompson
20 Ms Thompson, an officer of the Department of Immigration and Multicultural and Indigenous Affairs provided evidence in a spreadsheet of the working holiday visa details of persons identified in a subpoena. The names of the persons listed in the subpoena were sourced from the blue Collins diary located in the reception of the premises and photographed by Mr Graham and from conversations held between Mr David Mulcahy, an officer of the council with several persons during the search of the premises on 16 January 2003.

21 The spreadsheet contains details of names, date of birth, visa, arrival date, flight number, departure date, airport and flight. The names provided to Ms Thompson were entered in the International Movement Database. The Database records movements received electronically from international airports derived from the scanning of passports and information contained within cards (described as International Movement Records) completed by persons arriving in Australia from overseas and from cards completed by the same persons when leaving Australia. The accuracy of the information arises from the fact that the passport is scanned.

22 Ms Thompson collated the results of her search in the spreadsheet and also obtained copies of the arrival and departure cards prepared by the named persons. Some discrepancies were shown in respect of the entries of certain persons listed in the spreadsheet. However the apparent discrepancies were explained by her as resulting from the fact that the person may leave and enter Australia during the currency of their visa, and in this respect the spreadsheet did not record every movement of the person.

MARINKA ALLAN, 30 LINKFIELD ST, REDHILL, SURREY, RHIGBW ENGLAND

Family Name	Given Names	DOB	Visa	Arrival Date	Airport	Flight	Departure Date	Airport	Flight
ALLAN	Marinka Donna	[XX]	TZ-417*D	27/12/2002	Sydney	QF2	26/05/03	Sydney	QF43

24 Such entry also corresponds to arrival and departure International Movement Records of Marinka Allan which indicate she was a visitor or temporary entrant to Australia.

David Mulcahy
25 Mr Mulcahy, Team Leader Environmental Health and Building/Development Regulatory Unit of the council also attended the inspection on 16 January 2003. Mr Mulcahy spoke to several persons and ascertained their names and countries of origin. Of five persons in one room known as room 10A, all originated in the United Kingdom, allegedly held working visas, and were staying for varying periods ranging between two nights and six nights. Certain other rooms were locked, but residents in other rooms also stated that their country of origins were foreign, namely the United Kingdom and Ireland. One resident said that she was Australian.

26 Mr Mulcahy observed backpacks and luggage in another room known as room 1C. He observed that the rooms were dormitory style rooms containing a varying number of beds with little or no furniture.

Matthew Morrisey
27 Mr Morrisey is a Building and Development Control Officer engaged by the council. On 16 January 2003, he also inspected the subject property. During the inspection he took numerous photographs of the rooms within the premises.

28 The photographs show bunk bed style accommodation, personal belongings, clothing and several residents lying on bunk beds. A kitchen is shown, containing glass door cabinets. A large room is shown, and another room with lounges and couches.

29 At his inspection on 16 January 2003 some of the rooms were locked. Entry was not available into certain rooms, but rooms which were inspected showed that they had recently been occupied.

30 Mr Morrisey observed at his inspection on 16 January 2003 that the glass sliding doors were located in their tracks in garages 9 and 10. He took a photograph of the door to garage 9 the glass door was partially opened. A bed was located in garage 9. Mr Morrisey was informed that the bed was used from time to time by staff members.

31 At an inspection of garage 10 in December 2003, Mr Morrisey gained access by raising the roller shutter door. He noticed that the glass sliding doors were removed from the track on the floor, but the track was still in place. Disassembled beds were stored in the garage. In garage 9, he observed that the glass doors had been removed and stacked to one side, but the track remained in place.

We are not a backpacker accommodation. There is a sign on the front desk that says that. We are not operating illegally. We are providing budget accommodation.

Friday

Daily

Friday

34 Receipt books were photographed entitled “Nightly” , “Weekly” and “Check Ins”.

I don’t mind you inspecting the premises. We are operating a budget accommodation and not a backpackers.

We provide budget accommodation. I have a sign at the front reception. It is not up to me to work out if the person is a backpacker or what they are.

Ajoy Ghosh
37 Mr Ghosh is an expert in information technology and has had 12 years experience in the investigation of computer crime. He is also the author or co-author of two texts dealing with such subject. His evidence explains the operation of the internet, including the function of keywords, meta tags, the “Google” search engine, and the use of computer programmes.

38 Mr Ghosh explained certain terminology used in conjunction with the operation of the internet including a “universal resource locator” (“URL”) which is a facility designed to make access to internet sites easier for consumers. He said that “meta tags” comprises a system used to insert information into a web page which is not normally of interest to the viewer, but was to search engines. They are used to transmit information to web programs such as search engines, of which “Google” was the most common, about the content of the web page. Mr Ghosh explained that a “search engine” enabled retrieval of information on the internet via key words. The Google search engine maintains a “cache”, which is a copy of the website at the time it was catalogued by Google. As Google catalogues the internet, it takes a copy of the websites which are located by it and are stored.

39 Mr Graham, the council officer, undertook a search in Google using the word “ Aegean ”. It produced the list of links as shown in “ADG15” being the annexure to Mr Graham’s affidavit sworn 1 September 2003.

40 On 24 December 2003 Mr Ghosh attempted to access the same web sites that Mr Graham had accessed previously. The Aegean Backpackers website was unavailable and Mr Ghosh concluded that it had either been removed from the internet or rendered temporarily inaccessible. Mr Ghosh located the website entitled “The Aegean Coogee Bay Road Backpackers” website at URL He observed that the website could be accessed by typing the URL directly. The website however had now changed. It was entitled “Aegean Lodge Licence Boarding House” , but the textual display and images were identical to those attached as “ADG16” to Mr Graham’s affidavit. The meta tags Mr Ghosh found within the source code of the website included the words “ backpack”, “backpacker”, “backpacking”, “Australia”, “youth hostel” and “tourism ”.

41 On 11 March 2004 Mr Ghosh accessed and found that there were changes from his previous visit. Such changes included the title bar changing from displaying “ Aegean Lodge Licence Boarding House ” to “ The Aegean Lodge ” and no meta tags were located within the source code of the web page.

Brett Gall
42 Mr Gall is the General Manager of a printing firm known as Galloping Press, which in November 2001 was the publisher and printer of a publication known as “The Backpack Guide to Australia.” Mr Gall testified that such publication was distributed free of charge particularly at the arrival section of Sydney Airport. Copies were also distributed to tour operators and advertisers. The cost of producing the publication which was published quarterly was paid for by advertising.

43 Orders were placed from persons wishing to advertise in the magazine. By order dated 20 November 2001 The Aegean Backpackers Hotel placed an order for an advertisement in the “The Backpack Guide to Australia” magazine in full colour. An invoice dated 7 December 2001 was issued to “ Peta Athens The Aegean Lodge ” which was paid. Invoices for the same advertising were produced dated 12 March 2002, 17 June 2002 and 18 September 2002 all of which were paid.

44 Annexed to Mr Gall’s affidavit are copies of the editions of the publication “Backpack Guide to Australia” for summer 2001, autumn and winter 2002. Advertisements on p 14 of the summer 2001 edition and p 17 of the autumn 2002 edition are entitled “ The Aegean Coogee Bay Road Backpackers Backpacker Accommodation & Resort ”. The advertisements include a photograph of a mini-bus bearing the name “ Aegean Coogee Bay Rd Backpackers ”. The advertisement on p 31 of the winter 2002 edition is entitled “ The Aegean Lodge Shared Budget Accommodation ”. It includes the text: “ Dorms from $14 per night on weekly discount ”. However generally it has the same text, layout, illustrations and photographs including a photograph of a mini-bus bearing the name “ Aegean Coogee Bay Rd Backpackers ” as the previous two advertisements already described.

Respondents’ Evidence
45 Neither the first respondent nor the second respondent by its officer, the first respondent gave evidence. Instead each relied upon evidence of other witnesses.
John Giles Bourke

46 The respondents relied upon the evidence of Mr Bourke a chartered architect, town planner and urban designer. Mr Bourke visited the premises between 1 April 2002 and 16 January 2003 on approximately five occasions.

47 Mr Bourke had a recollection that the sliding doors to garage 9 and garage 10 were removed and were no longer installed from the end of 2000. A roller shutter door was installed on or about 20 December 2000 to each of those garages. However photographs taken by Mr Bourke in March or April 2004 show the glass sliding doors positioned behind to the roller doors, although placed upside down and therefore not within the tracks along the floor of the garages.

48 Mr Bourke had a recollection that the glass sliding doors had been removed “since the end of 2000”. Mr Bourke’s affidavit did not state that he inspected the garages, or that he had a clear recollection that the doors had been removed. However in his oral evidence he confirmed that he had visited the premises and had entered into garage number 10. He did not enter garage number 9 but looked into it. He acknowledged that the garages were being used for the purposes of storage as shown in photographs tendered in evidence.

49 On a later visit of Mr Bourke to the premises in the last week of September 2003. Mr Bourke observed the sign at the reception desk, stating inter alia, “This is not a Backpacker’s Hostel”.

50 Mr Bourke inspected the books and records of the respondents. He observed that stationery, namely a receipt book, which previously bore the name “The Aegean Coogee Bay Road Backpackers” had the word “Backpackers” obliterated on the front sheet by black ink. The obliteration had occurred on the front sheet, but had not obliterated the pink carbonated sheet beneath. Accordingly the word “Backpackers” was still visible.

…or go to backpackers down the road.

Mr Bourke has observed that a sign “Aegean Lodge” has been prominently displayed at the front of the premises. Signs also exist as billboards attached to bus shelters at the intersection of Perouse Road and Coogee Bay Road.

52 The subject premises have been registered as a “place of shared accommodation, boarding house” under the Local Government Act 1993. The registration has been made in respect of the name “Coogee Bay Road Backpackers”.

53 The primary judge also relied on the additional material referred to in pars.[70]-[72], set out earlier.

Submissions

54 Mr. Buchanan submitted that the primary judge was in error in admitting four categories of evidence:

55 As regards the first category, Mr. Buchanan submitted that statements by the persons encountered on the premises as to their names, places of origin and length of stay were hearsay; and because the proceedings were not civil proceedings within the meaning of the Evidence Act 1995, the evidence could not admitted under s.64 of that Act, and the stringent test in the dictionary of that Act which had to be satisfied if evidence were to be admitted under s.65 because the maker of the statement was “not available” was not satisfied in this case. Also, it was an erroneous exercise of discretion to admit the evidence. Further, s.138 of the Evidence Act applied, because the evidence was obtained in consequence of impropriety: the warrants in question only permitted officers of the Council to search the premises for evidence, not to question persons encountered on the premises. The primary judge wrongly prevented that issue being pursued, and so never exercised a discretion under s.138 to admit the evidence notwithstanding the impropriety.

56 As regards the second category, Mr. Buchanan submitted that the evidence was in part based on Mr. Mulcahy’s evidence which was inadmissible; and also was irrelevant because there was no evidence that the persons dealt with in the evidence were travelling with rucksacks.

57 As regards the third and fourth categories, Mr. Buchanan submitted that this material was merely hearsay by other persons.

Decision

58 Section 138 of the Evidence Act is in the following terms:

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

International Covenant on Civil and Political Rights

59 In my opinion, there was no error by the primary judge on the s.138 issue. Mr. Mulcahy’s evidence was received into evidence over objection as to hearsay, but no objection to the effect that s.138 applied. Later on, Counsel for the appellants sought to cross-examine Mr. Mulcahy concerning the meaning of the search warrant, and the primary judge ruled that this matter was irrelevant. The question was then not pursued, and no application was made to the primary judge for him to revisit the admissibility of the affidavit in the light of s.138. In those circumstances, while I accept that Mr. Mulcahy’s understanding of what he was entitled to do under the warrant could be relevant to an exercise of discretion under s.138, in the circumstances no occasion had arisen for the primary judge to address s.138 at all.

60 In any event, my tentative view is that a warrant authorising a person to search premises for evidence authorises that person to speak to persons encountered with a view to obtaining evidence from them, albeit that those persons are not obliged to respond; that is, in my opinion, for the person authorised by the warrant to take that course is neither a trespass to land nor an impropriety.

61 The dictionary of the Evidence Act defines “civil proceedings” as “proceedings other than a criminal proceeding”; and “criminal proceeding” as meaning “a prosecution for an offence” with qualifications not here relevant. “Prosecution” is not defined. “Offence” is defined as meaning “an offence against or arising under an Australian law”; and “Australian law” is defined to mean “a law of the Commonwealth, a State, or a Territory”.

62 Witham v. Holloway (1995) 183 CLR 525 established that proceedings for contempt must realistically be seen as criminal in nature; although this case maintained a distinction between such proceedings and the trial of a criminal charge. The question whether the subject proceedings are “a prosecution for an offence” for the purposes of the Evidence Act is not an easy one. It does not have to be determined in this case, and I will assume in favour of the appellants that it is.

63 In those circumstances, the conversations deposed to by Mr. Mulcahy are not admissible hearsay under s.64. I accept that the stringent requirements for showing that the maker of a statement is “not available” were not satisfied. However, in my opinion not all of what the persons said to Mr. Mulcahy was inadmissible as hearsay. In so far as they said what their intentions were as to the length of their stay, in my opinion this was admissible under s.72 of the Evidence Act as evidence of their intentions, which can in turn be some evidence of the fact: Dobson v. Morris (1975) 4 NSWLR 681. In so far as these persons gave their names, this was hearsay as to whether this was their true identity; but in my opinion it was some direct evidence that this was the name under which they were holding themselves out, so as to be some evidence linking them with other contemporary references to the same name. Accordingly, in my opinion the evidence of conversations was admissible on the crucial question of the length of stay of the persons encountered.

64 As regards the second category, it appears that only three of about 36 names identified by Miss Thompson depended solely on Mr. Mulcahy’s evidence: other names were obtained from the blue Collins diary which was admissible as a business record. Even the remaining three were in my opinion appropriately linked, for the reason given above. Since the LEP definition was the relevant one, there was no need to associate persons staying at the property with the actual use of backpacks. In any event, even if there were a need to associate them with backpacks, this would not make the evidence inadmissible.

65 As regards the third and fourth categories, this material was not admissible as hearsay. However, it had possible marginal relevance, in showing that persons looking for backpacker accommodation could have been directed to the appellants, in which event they may have followed the matter further. This evidence is so weak on its own, that it may well have been appropriate to exclude it under s.135 or, on the assumption that these were criminal proceedings, s.137. However, although this material was admitted and recited in the judgment, it was not explicitly relied on in the judge’s findings. I do not think material error was shown in relation to these categories of evidence.

4. RELEVANCE OF EVIDENCE

Submissions

66 Mr. Buchanan submitted that, once it was established that residents at the premises were travellers, the length of their stay was an irrelevant consideration, as was the circumstance that some were from foreign countries and/or in possession of working holiday visas.

67 He also made submissions to the effect of ground 18A set out above; and submitted that the primary judge erred in treating circumstantial evidence as relevant, when the requirements for the use of circumstantial evidence in s.124AA of the Environmental Planning & Assessment Act were not satisfied.

102 Photographs were taken on 16 January 2003 of the pages for 1 to 15 January 2003 of a blue Collins diary which the primary judge inferred was a guest register showing names and addresses of persons staying at the premises on the days in question. Most of the addresses were outside Australia. These names were linked with the evidence from Ms. Thompson concerning working holiday visas.

103 Mr. Mulcahy spoke to a number of persons, including eight who said they intended to stay for periods from two days to two weeks, four who said they intended to stay for between one and six months, and three whose conversations indicated an intention to stay longer term. Some of these persons were also linked to Ms. Thompson’s information.

104 On 17 June 2002 and 18 September 2002, the appellants paid invoices for inclusion in The Backpackers Guide to Australia of an advertisement for the building, in which the premises were called “The Aegean Lodge shared budget accommodation” and which included the text “Dorms for $14 per night or weekly discount”.

105 In June 2003 and January 2004, the website of the premises, among other things, gave an international phone number, referred to rates from $25 per night per person or weekly discounts, and stated “We can arrange a bus shuttle to pick you up from the airport”.

106 Receipts produced on subpoena for the period 17 February 2004 to 9 April 2004 showed receipts for payments for periods of accommodation generally for periods of a few nights or one week, with some being for two or three weeks; and also over 40 statements with names and signatures, in the following printed terms:

The Aegean Lodge

Name of Lodger

Address of Lodger

I confirm that I have a visa entitling me to stay in Sydney for at least 12 months and that I intend to make the Aegean Lodge my permanent home while I am in Australia.

I wish to stay initially at the Aegean Lodge for a trial period of to determine whether the premises are satisfactory to me as a permanent lodger*.

After that time, I will become a permanent lodger subject to a licence to occupy the premises from week to week, paying a full week in advance on each Friday (“the payment day”), noting that if I seek to determine the licence prior to the next payment day, I shall not be entitled to any rebate for any portion attributable to pre-payment.

I certify that I am not a tourist.

[Meals are available table d’hote . Peta, Arthur or George are available to discuss your preferred dinner menu. Our standard breakfast costs $10.00 and our standard dinner costs $15.00. We are not licensed to sell liquor.]

107 On some of the signed forms, the words “Address of Lodger” are struck out, and on others the word “here” is placed after those words. The trial period is stated to be either one week, or in some case a period between one and three days.

108 In my opinion, the primary judge was correct in holding that this did not raise any reasonable doubt that substantial numbers of the persons staying at the premises were tourists and were using the premises for temporary accommodation. As noted earlier, these forms, which must have been prepared by the appellants, demonstrated that the premises were not licensed; and also indicated that the appellants were attempting to suggest that, contrary to the true position, they were not providing temporary accommodation for tourists.

109 In my opinion, these matters together with the other evidence referred to by the primary judge do show beyond reasonable doubt that the premises were being used in January 2003 for providing temporary accommodation for tourists whose principal place of residence was elsewhere. The fact that some of the occupants were or may have been staying longer term does not count against this finding.

110 In my opinion, inferences from the content of the website during 2003 and the documents of early 2004, together with the presumption of continuance, justifies a finding beyond reasonable doubt that this state of affairs continued until the dates of the 2004 receipts. In my opinion, leaving aside the issue concerning June 2002, the placing of advertisements in The Backpackers Guide to Australia for which payments were made in June and September 2002, and also receipts going back to August 2002, justify a finding beyond reasonable doubt that this state of affairs did exist from about June 2002 to January 2003. There is some force in the submission that, having regard to the admission made on 18 June 2002 and the non-calling of persons who inspected on 17 June 2002, the Court should not infer beyond reasonable doubt that the premises were used for the purpose of backpacker accommodation around this time; but in my opinion it is not a reasonable possibility that there was use as a boarding house at that time, that is, use essentially to accommodate persons on a long-term basis and not to accommodate tourists on a short-term basis, and that this use then changed, particularly having regard to the receipts to which I have referred, the advertisements in the second half of 2002 and the evidence concerning January 2003.

111 Finally, I note that, even if it had been necessary to prove that a sufficient number of persons accommodated at the premises used backpacks, so as to show that the premises were used for the purpose of providing backpacker accommodation in the ordinary meaning of the words, evidence of a substantial number of backpacks on the premises on 16 January 2003 would justify an inference beyond reasonable doubt that it was so used, at least at around that time. However, for reasons I have given, this question does not arise.

112 For those reasons, in my opinion the appeal should be dismissed so far as it relates to the finding of guilt on the first charge.

9. CONSTRUCTION OF CONSENT ORDER

113 Three questions arose in relation to construction of the consent order: first, what was the meaning of “remove”; second, did the order have a continuing operation; and third, was the order sufficiently clear to the appellants to support enforcement proceedings?

Submissions

114 Mr. Buchanan submitted that the word “remove” was inherently uncertain, because there was no indication from exactly where or from what the glass doors were to be removed; and also submitted that the order simply required something to happen and did not require that the situation thereby produced be maintained. He further submitted that in any event, the order was not sufficiently clear, especially since it referred to a separate document, namely in its reference to Order 7 in the Application.

Decision

115 In my opinion, what the order required was that the glass doors be removed from their position at the entrance to the garages, that the garages be restored for the purpose of car parking, and that this situation be maintained thereafter. The intention was that the glass doors not be left as potential barriers to the entrance of the garage, and the circumstance that there could be quibbles about exactly how far the doors had to be removed did not relevantly produce any uncertainty. The order could not conceivably mean that the doors should be removed and the garage restored for the purpose of car parking, but that the next day the doors could be replaced and the garage could be again made unavailable for car parking: although the order did not specifically require maintenance of the position, this requirement was plainly implied.

116 In my opinion, this meaning was sufficiently clear to the appellants; and the reference to Order 7 in the Application, which was essentially in the same terms, introduced no relevant uncertainty.

10. CERTAINTY OF SECOND CHARGE

117 The main issue here was that the charge was of breach of Order 3 made on 8 December 2000, whereas that order was effective only if read with Order 4, which set the time by which Order 3 had to be complied with.

Submissions

118 Mr. Buchanan submitted that the charge did not properly allege any offence, in that it neither referred to the deadline of 31 December 2000 nor did it refer to Order 4 which set that deadline.

Decision

119 In my opinion, the charge alleged that at no time from the making of the order to the time of the charge, and subsequently to the time of the giving of particulars, had the appellants done what was required by Order 3. The circumstance that there was no breach of the order until after 31 December 2000 did not in my opinion introduce any uncertainty into the charge. It meant that the charge could only succeed as to the period following 31 December 2000, but in my opinion that did not introduce any relevant uncertainty to the charge. There was no basis on which the appellants could allege confusion or prejudice.

11. DEFICIENCY OF EVIDENCE AND REASONS CONCERING SECOND CHARGE

120 The primary judge gave the following reasons for finding the second charge proved:

82 At the inspection carried out by Mr Graham and Mr Morrissey on 16 January 2003, both officers testified that the sliding glass doors remained in their tracks. Photographs taken at that inspection appear to show that the glass doors were in their tracks. It is claimed by the respondents that the sliding glass doors were removed from their tracks but remained in substantially the same position, although upside down. The photographs tendered by the respondents taken in March/April 2004 show that the doors were upside down and apparently placed in a similar position as the doors would have been had they been in their tracks. Relocating the glass sliding doors from their tracks and placing them upside down in essentially the same position is not sufficient to “remove” them for the purposes of order 3 made on 8 December 2000.

83 The photographs tendered in evidence by both the council and the respondents show that furniture and bedding is stored within the garages. Such photographs also show the glass doors placed across the entranceway immediately behind the roller shutter doors. Both the position of the glass doors and the storage of furniture which occupies most of the space within the garages prevent the garages from being used for the purpose of carparking.

84 It follows that order 3 of 8 December 2000 has not been fulfilled and that the respondents committed a breach of the order on 16 January 2003 and again in March/April 2004. The Court draws the inference that the garages have never been restored for the purpose of carparking.

Submissions

121 Mr. Buchanan submitted that evidence of circumstances obtaining at 16 March 2003 and 17 December 2003 (and presumably also March/April 2004) could not prove beyond reasonable doubt that the order was breached as at 31 December 2000, the relevant date. Further, the primary judge did not make a finding that the charge was proved beyond reasonable doubt, and indeed did not give reasons that could support such a finding.

Decision

122 The evidence did show beyond reasonable doubt that the garages were not in the state required by the consent order on the days indicated; and on my construction of the order this was sufficient to show breach of the order. Furthermore, in my opinion the inference can readily be drawn beyond reasonable doubt that the appellants had not previously put the garages into the state required by the order, and that they did not do so between January 2003 and December 2003. In my opinion the primary judge appropriately drew that inference and gave sufficient reasons. He had previously said that proof beyond reasonable doubt was required, and he did not have to repeat this.

12. PENALTIES

Submissions

123 Mr. Buchanan referred to Construction, Forestry, Mining & Energy Union v. BHP Steel (AIS) Pty. Limited (2003) 196 ALR 350 and Environment Protection Authority v. Alkem Drums Pty. Limited (2001) 113 LGERA 130, submitting that a breach of the second order occurred once and for all on 31 December 2000, and there could be no breach thereafter. He submitted that the primary judge was in error in finding that the breach of the consent order was continuing to occur as at 29 April 2004 and in imposing a continuing penalty in relation to that matter.

124 He also challenged the finding of the primary judge that the appellants had pretended to comply with and had endeavoured to circumvent the order of 1 June 2001; and he submitted that the penalties were manifestly excessive.

Decision

125 On the construction I have given to the consent order, the cases referred to by Mr. Buchanan have no application, because those cases related to events which the Court in each case held occurred once and for all on a particular date. In my opinion, it was open to the judge to impose a continuing penalty with a view to bringing about compliance with the Court order. That order for a continuing penalty, however, could only be enforced by further proceedings in which the actual occurrence of later breaches was again proved beyond reasonable doubt.

126 In my opinion, the primary judge was entitled to find beyond reasonable doubt, for reasons given in his judgments, that the appellants had pretended to comply with and had endeavoured to circumvent the order of 1 June 2001, for example by reference to the documents produced on subpoena to which I referred above. The breaches of the Court order were serious ones, and in my opinion there is no merit whatsoever in the submission that the penalties were manifestly excessive.

CONCLUSION

127 For those reasons, in my opinion the appeal should be dismissed with costs.

128 SANTOW JA: I agree with Hodgson JA in the result and, subject to the observations which follow, his reasons. My observations concern how if at all ambiguity may be resolved in court orders and the related question of whether court orders can ever be “completely self-contained and self-explanatory” or indeed should be. Those matters are dealt with at [27] to [38] of the judgment of Hodgson JA.

129 To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of interpretation of the order.

130 If an order were made in clear disconformity with its originating judgment, that would ordinarily invalidate the order pro tanto. It is the judgment which controls the scope of any consequential orders, setting the parameters for what conformance requires. Contractual context does not operate in so controlling a manner in resolving contractual ambiguity. It is but one aid to construction amongst several. Whereas in the case of ambiguous court orders, it is the judgment which is ordinarily the primary reference point in resolving ambiguity though the wider proceedings may also on occasion assist.

131 I should at this point acknowledge that there is a slight but perceptible divergence between two lines of authority in relation to whether recourse may be had to the reasons for judgment or indeed any other extrinsic material when construing an order. These two lines of authority may be described as representing weak and strong variants of the same principle.

132 One trend of authority (the weak variant) is that it is seldom permissible to go behind an order and examine the reasons for judgment as an aid to construction of that order, the exception being where the order is ambiguous: see P W Young, “Construing Court orders” (1998) 72 ALJ 117; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311-312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33-34.

133 The other trend of authority (the strong variant) is that the meaning of words in an order should in an appropriate case be considered by reference to the reasons for judgment, themselves finding their context in the overall proceedings: see for example Australian Energy Ltd v Lennard Oil Ltd [1988] 2 QdR 230 at 232; Kwikspan Putlin System Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4602 at 4605; Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (Santow J, SCNSW, 12 November 1997, unreported). I prefer the latter line of authority.

134 Both lines of authority therefore permit recourse to the reasons for judgment in resolving ambiguity.

135 Ambiguity in orders is resolved primarily by reference to the originating judgment. The premise for doing so is that the judicial officer making the orders must be taken thereby to have intended to give effect to that judgment. However, if the language of the orders proves intractably obscure, then the orders must fail pro tanto.

136 The making of orders is not always a mechanical extrapolation from the originating judgment. There may be room for a range of possible orders, and possible meanings of those orders, which would conform. Then the wider context of the proceedings can have an important bearing, particularly the pleadings which should identify the orders sought. When the meaning of an order is ambiguous, and that ambiguity is not able to be resolved solely by reference to the judgment itself, resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context. Thus it can be highly relevant to know what the successful claimant sought by way of relief. The judgment may need to be understood by reference to how the parties put their cases.

137 Orders when delivered have a continuing life of their own, once the umbilical cord has been thereby severed from the originating judgment. But it does not follow that orders so launched are to be treated thereafter as completely self-contained when it comes to their interpretation. Convenience and clarity, especially for the party bound, dictate that the orders should so far as reasonably practicable, be self-standing. But where, as here, an expression like “back-packer accommodation” is used in Sheahan J’s orders, it is perfectly proper to construe it by reference to his originating judgment. Sheahan J, clearly enough, employed that terminology by reference to the relevant LEP, as the context of the proceedings before him makes clear. That should have been the meaning which Cowdroy J attributed to the orders when dealing with their enforcement. Nonetheless, his failure to do so is not fatal to their enforcement by way of contempt, for the reasons given by Hodgson JA, with which I agree.

138 That leads to the question, can and should orders be completely self-contained and self-explanatory? Given that ambiguity is inherent in all language, it would be too much to expect that orders can be expected to be self-explanatory, though that be a worthy ideal.

139 Self-containment for orders is in any event not essential. Thus concision in orders is not always achievable without incorporation by reference of some more complex or detailed matter. The legitimacy of doing so will depend on what is incorporated and how. The fundamental requirement is that such incorporation by reference must not impede the recipient of an order from understanding what the order requires in order to obey it. So long as what is incorporated is readily accessible to the parties, that requirement is fulfilled. Here, for example, had the orders expressly incorporated by reference the relevant definition in the LEP, that would have occasioned no difficulty. Indeed it would have assisted in terms of clarity. The LEP was readily available as a public document and was very much part of the context of the proceedings. Moreover, it was of legislative force, though that feature is by no means essential. Orders would become excessively long if one had to repeat laboriously what could simply and accessibly be incorporated by reference.

140 To sum up:

(b) Where orders are ambiguous, that ambiguity must be resolved first by reference to the originating judgment, unless the language of the orders proves intractable.

(c) Orders may also need explication by reference to the proceedings in which the judgment is given, particularly the pleadings. This recognises that a range of orders and their possible meanings may conform to the judgment.

(d) While orders should ideally be self-explanatory, language is inherently ambiguous so permitting that resort to resolve ambiguity.

(e) Orders should so far as practicable be self-contained. But incorporation by reference is permitted where that to which reference is made is readily accessible and likely to be familiar to the parties, like an LEP. The cardinal principle is that the person to whom an order is directed should readily understand what is required of him by that order. Incorporation by reference may actually assist that understanding, if concision is thereby achieved without loss of clarity.

141 TOBIAS JA: I have had the benefit of reading in draft the judgments of Hodgson JA and Santow JA. I agree with the orders proposed by Hodgson JA for the reasons he has given. I also agree with the additional observations of Santow JA.

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22/09/2005 - Correction to name of lower court judge - Paragraph(s) coversheet

Citations

Athens v Randwick City Council [2005] NSWCA 317

Most Recent Citation

Cases Citing This Decision

236

Kimberley Developments Pty Ltd v Bale [2024] NSWCA 131

Cases Cited

14

Statutory Material Cited

1

Bankstown City Council v Alamdo Holdings Pty Ltd [2004] NSWCA 325

Automasters Australia Pty Ltd v Bruness Pty Ltd [1999] WASC 39

Kirkpatrick v Kotis [2004] NSWSC 1265

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CITATION:	Athens & Anor. v. Randwick City Council [2005] NSWCA 317 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 - 12 August 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Hodgson JA at 1; Santow JA at 128; Tobias JA at 141
DECISION:	Appeal dismissed with costs

CATCHWORDS:	PROCEDURE - CONTEMPT OF COURT - JUDGMENTS AND ORDERS - Construction of court orders - Use of extrinsic material - Need for certainty - Relevance of prejudice where alleged uncertainty minor - Applicability of criminal procedure to contempt proceedings - EVIDENCE - Exclusion of evidence improperly obtained - Conversations with persons encountered on premises during execution of search warrant - Whether improperly obtained - Whether inadmissible as hearsay - Whether admissible as statement of intention - Cross-examination of officer of company on return of subpoena to company - Whether part of evidence in the proceedings.
LEGISLATION CITED:	Evidence Act 1995 ss.64, 72, 138
CASES CITED:	Attorney-General v. Punch Limited [2003] 1 AC 1046 Australian Consolidated Press Limited v. Morgan (1965) 112 CLR 483 Australian Energy Limited v. Lennard Oil Limited [1988] 2 QdR 230 Australian Energy Ltd v Lennard Oil Ltd [1988] 2 QdR 230 at 232 Bankstown City Council v. Allamdo Holdings Pty. Ltd. [2004] NSWCA 325, 135 LGERA 312 Caruso v. Holtby [1999] WASC 39 Construction, Forestry, Mining & Energy Union v. BHP Steel (AIS) Pty. Limited (2003) 196 ALR 350 Coward v. Stapleton (1953) 90 CLR 573 Dobson v. Morris (1975) 4 NSWLR 681 Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (Santow J, SCNSW, 12 November 1997, unreported) Environment Protection Authority v. Alkem Drums Pty. Limited (2001) 113 LGERA 130 Ex Parte Graham, Re Dowling (1968) 88 WN(Pt.1)NSW 270 Harris v. Harris [2001] 2 FLR 895 Johnson v. Miller (1937) 57 CLR 467 Kirkpatrick v. Kotis [2004] NSWSC 1265 Kwikspan Putlin System Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4602 Lewis v. Nortex Pty. Limited [2002] NSWSC 1064 McNair Anderson Associates Pty. Ltd. v. Hinch [1985] VR 309 Microsoft Corporation v. Marks (No.1) (1996) 69 FCR 117 Prout v. La Rosa [2005] WASCA 98 Re A Bankrupt: Rudkin-Jones v. The Trustee of the Property of the Bankrupt [1965] 109 Sol.Jnl. 334. Repatriation Commission v. Nation (1995) 57 FCR 25 The Commissioner of Water Resources v. Federated Engine Drivers & Firemen's Association of Australasia Queensland Branch [1987] 2 QdR 385 Trade Practices Commission v. Arnott's Limited (No.2) (1989) 21 FCR 306 Witham v. Holloway (1995) 183 CLR 525 Wysznski v. Bill [2005] NSWSC 110
PARTIES:	Peta Athens - first appellant Athens Holdings Pty. Ltd. - second appellant Randwick City Council - respondent
FILE NUMBER(S):	CA 40417/04
COUNSEL:	Mr. D.A. Buchanan SC for appellants Mr. D. Officer QC with Mr. A.J. Thompson for respondent
SOLICITORS:	Holding Redlich, Sydney for appellants Bowen & Gerathy, Sydney for respondent

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC40097/00
LOWER COURT JUDICIAL OFFICER:	Cowdroy J