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Athens v Randwick City Council

Athens v Randwick City Council

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Case Copied 16 September 2005 73 min read

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWCA 317
Decision Date: 16 September 2005

CaseChat Overview and Summary

Athens and Randwick City Council were the parties involved in proceedings before the Court of Appeal of New South Wales. The dispute concerned the construction of court orders and the admissibility of evidence obtained during the execution of a search warrant, which formed the basis of an allegation of contempt of court.

The court was required to determine several legal issues. These included the proper approach to construing court orders, particularly concerning the use of extrinsic material and the need for certainty in such orders. Furthermore, the court had to consider the relevance of prejudice when an alleged uncertainty in an order was minor. The admissibility of conversations with persons encountered on premises during the execution of a search warrant was also a key issue, specifically whether such evidence was improperly obtained, inadmissible as hearsay, or admissible as a statement of intention. Finally, the court considered whether the cross-examination of a company officer upon the return of a subpoena to the company formed part of the evidence in the proceedings.

The court applied principles relating to the construction of court orders, emphasizing the need for certainty and the limited circumstances in which extrinsic material may be considered. It also addressed the admissibility of evidence, considering whether it was improperly obtained or hearsay, and its relevance to proving a statement of intention. The court's reasoning addressed the procedural aspects of contempt proceedings and the admissibility of evidence obtained during the execution of a search warrant.

The appeal was dismissed, and the parties were ordered to pay costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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…