Auburn Council v Czopak [No 3]

[2005] NSWLEC 417

Land and Environment Court

of New South Wales

CITATION:	Auburn Council v Czopak [No 3] [2005] NSWLEC 417
PARTIES:	APPLICANT: Auburn Council RESPONDENT: Mr Mychajlo Czopak
FILE NUMBER(S):	40472 of 2005
CORAM:	Pain J
KEY ISSUES:	Contempt :- adjournment of proceedings to allow Respondent to answer charges of contempt - whether to issue a warrant for the Respondent's arrest for the production of the Respondent before the Court
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121D Land and Environment Court Rules 1996 Pt 6 r 2 Supreme Court Rules 1970 Pt 47 r 2
CASES CITED:	Auburn Council v Czopak [2005] NSWLEC 357; Auburn Council v Czopak [No 2] [2005] NSWLEC 372
DATES OF HEARING:	18/07/2005
EX TEMPORE JUDGMENT DATE:	07/18/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Vergotis (solicitor) SOLICITORS: Matthews Folbigg RESPONDENT: no appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 July 2005

40472 of 2005 Auburn Council v Czopak [No 3]

EX TEMPORE JUDGMENT

1 HER HONOUR: Auburn Council (“the Council”) has moved the Court by an Amended Notice of Motion dated 18 July 2005 seeking orders that the Respondent is in contempt of Court.

2 On 17 June 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [2005] NSWLEC 357 and made the following orders:

…
4. An order that the Respondent be restrained from using the dwelling house and any ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe for residential purposes or any other purposes after Friday 24 June 2005;

5. An order that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises Lot 14, DP 372 (No.11) New Street, Lidcombe on or before Friday 24 June 2005;
…

3 On 21 June 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [No 2] [2005] NSWLEC 372 and made the following order:

1. An order that the Applicant enter the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe and do all such things as are necessary or convenient to give effect to the terms of Emergency Order No. 2 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 given by the Applicant to the Respondent on 15 April 2005 to demolish the dwelling house and all other ancillary outbuildings erected on the premises

upon the Respondent complying with order 5 of the Orders dated 17 June 2005…

4 Seven statements of charge are attached to the Amended Notice of Motion dated 17 June 2005. The seven statements of charge allege that the Respondent has failed to comply with orders 4 and 5 dated 17 June 2005 on seven occasions being 27 June 2005, 28 June 2005, 29 June 2005, 30 June 2005, 4 July 2005, 11 July 2005 and 15 July 2005. One statement of charge was attached to the original Notice of Motion dated 6 July 2004 and has been served on the Respondent. The Amended Notice of Motion and the additional six statements of charge have not been served on the Respondent. I consider that it is important, given the nature of these proceedings, that the Amended Notice of Motion and the six additional statements of charge be served on the Respondent today.

5 The Council relied on three affidavits sworn on 27 June 2005, 4 July 2005 and 15 July 2005 by Mr Michael Ryan, the Council’s Senior Health and Building Surveyor. Mr Ryan states that he attended the dwelling located at 11 New Street, Lidcombe (“the site”) owned by the Respondent on 27 June 2005, 28 June 2005, 29 June 2005, 30 June 2005, 4 July 2005, 11 July 2005 and 15 July 2005. Mr Ryan states that on each of the occasions he observed the Respondent using the dwelling house located on the site as a residence. Mr Ryan gave evidence that as the Respondent had not evacuated on each of the seven occasions, the Council was unable to carry out its obligations under order 1 dated 21 June 2005.

6 The Respondent has not presented himself at Court today. His name has been called outside the Court and he has not appeared. The solicitor who has previously acted for the Respondent no longer appears for him and has filed a Notice of Ceasing to Act. I further the note that the Respondent appeared before Talbot J in this Court on 6 July 2005 when he was advised that he must attend the Court today for this matter.

7 The Respondent’s failure to attend Court to answer charges of contempt is a serious matter. Given that charges of contempt can lead to serious punishment I consider that the Respondent should be required to attend Court to answer the charges.

8 To that end, the Court will make an order requiring the Respondent to attend Court on 19 July 2005 at 10.00 am. In default of the Respondent’s attendance in Court, I will issue a warrant for the Respondent’s arrest for the production of the Respondent before the Court without further notice to him pursuant to Pt 42 r 7(1)(e) of the Supreme Court Rules 1970 and Pt 6 r 2 of the Land and Environment Court Rules 1996.

Orders

9 The Court makes the following orders:

1. The Respondent Mr Mychajlo Czopak attend at the Land and Environment Court on Level 5, 225 Macquarie St, Sydney at 10.00 am on Tuesday 19 July 2005 to answer the charges of contempt contained in the Amended Notice of Motion dated 18 July 2005 and the Statements of Charge dated 29 June 2005 and 18 July 2005.

2. In default of appearance at that time and place the Applicant be at liberty to obtain an order for the arrest of the Respondent without further notice to the Respondent.

3. A copy of these orders be served upon the Respondent by no later than 5.00 pm on Monday 18 July 2005.

4. A copy of the Amended Notice of Motion dated 18 July 2005 and any affidavits in support of the Amended Notice of Motion be served upon the Respondent by no later than 5.00 pm on Monday 18 July 2005.

5. Costs are to be reserved.