Bankstown City Council v Attallah
[2000] NSWLEC 133
•04/28/2000
Land and Environment Court
of New South Wales
CITATION: Bankstown City Council v Attallah & Anor [2000] NSWLEC 133 PARTIES: APPLICANT
Bankstown City Council
FIRST RESPONDENT
Joseph Attallah
SECOND RESPONDENT
Jaqueline WalshFILE NUMBER(S): 40107 of 1998 CORAM: Sheahan J KEY ISSUES: Contempt :- Contempt of orders - plea not guilty - conviction - penalty LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98;
Warringah Council v Franks & Ors, Pearlman J, 40123 of 1997, 19 May 1998 and 24 July 1998DATES OF HEARING: 28/04/2000 EX TEMPORE
JUDGMENT DATE :04/28/2000 LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson (Barrister)
Solicitors:
Marsdens Solicitors
FIRST & SECOND RESPONDENTS
Mr W Hodgkiss (Barrister)
SOLICITORS
Westside Lawyers
JUDGMENT:
IN THE LAND AND Matter No: 40107 of 1998
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 28 April 2000
Applicant
v
joseph attallah
First Respondent
Second Respondent
JUDGMENT
1. The Respondent, Joseph Attallah, has appeared with Counsel today in response to allegations that he is in contempt of orders of this court made in these proceedings by Cowdroy J (then an Acting Judge of this court) on 25 September 1998.
2. These proceedings are class 4 proceedings in which the Council sought declarations and orders to restrain the use of premises owned by the respondent Attallah at 2 Clements Avenue, Bankstown, for the purposes of prostitution.
3. I have read the judgment of Cowdroy J carefully and note that his Honour carefully weighed discretionary considerations in deciding to make the orders the Council sought, but suspending the operation of the restraining orders for about three weeks, until 18 October 1998.
4. His Honour’s orders were entered in the following terms:
The Court declares that:
1. The Respondents by themselves, their servants, agents or assigns are using, suffering of permitting to be used the premises 2 Clements Avenue, Bankstown (hereafter referred to as ‘the premises’) for the purpose of prostitution without the consent of the Applicant having been obtained therefor beforehand.
The Court orders that:
2. The Respondents by themselves, their servants, agents and assigns be and the same are hereby restrained from using, suffering or permitting to be used the premises for the purpose of prostitution.
3. The Respondents by themselves, their servants, agents or assigns be and the same are hereby restrained from using, suffering or permitting to be used the premises otherwise in accordance with the provisions of the Environmental Planning and Assessment Act 1979.
4. The operation of each of the above orders be suspended up to and including Sunday 18 October 1998.
5. The First and Second Respondents pay the Applicant’s costs.
6. The exhibits may be returned.
5. There is no dispute that these orders were served on Mr Attallah even if the customary notation was not brought clearly to his notice.
6. The evidence before me is that a few days after the judgment of Cowdroy J, Mr Attallah leased the subject premises to a Ms Jenny Lyn Sampson for use as a therapeutic massage facility at a rental of $1,500 per week, commencing 22 October 1998.
7. Mr Attallah signed the lease, and the affidavit to which it is attached, but I accept that he cannot read English, and that he has some difficulties with spoken English.
8. I also accept, however, his oral evidence before me today:
1. that he understood very clearly the major effect of Cowdroy J’s orders, namely, that he could have nothing to do with the conduct of a brothel from his premises; and
2. that whenever he receives important documents he arranges for someone to read them to him, and, one expects, explain them as needed.
9. It also appears that throughout these proceedings he has had the benefit of legal representation and advice.
10. He says that he did not know, or approve, the use of the premises as a brothel since Cowdroy J gave his judgment.
11. Yet he admits that, in apparent breach of His Honour’s orders, other uses have been made of the premises, and works have been carried out on them without obtaining development consent.
12. The court has his evidence of doing work and conducting at least one business, if not a brothel, from those premises, up until 3-4 months ago, and Mr Kerzinger’s evidence that, as at 21 January 2000, there have been no consents granted.
13. These premises are located a convenient distance from Canterbury Road, which enjoys a most unfortunate reputation for street prostitution.
14. The eyewitness observations of Mr Rugless have not been tested or contradicted, and he has observed women moving between the premises and Canterbury Road in circumstances strongly suggestive of prostitution. The floorplan and facilities of the premises ( Exhibit C1 ) convey similar suggestions.
15. Mr Attallah has conceded in his oral evidence that Bankstown Health Service regularly delivers supplies of condoms, syringes and gel to his premises, and that, when he conceded that to a Council Officer, he sought Mr Bartlett’s assistance to make sure that his property was “ clean ” in the eyes of Council and the police.
16. Mr Rugless paid for sex on the premises on 29 November 1998 and 16 October 1999. The second woman involved apparently lived on the site and advertised an escort service. The name used, “ Eternity ”, was the name used before the trial heard by Cowdroy J. The phone numbers at the premises are in Mr Attallah’s name, or that of his company.
17. Mr Chesterfield’s observations on 9 November 1998 are also suggestive of a “ sex on premises ” enterprise, and admissions were made by a woman on the premises at that time. When Mr Chesterfield returned on 19 February 1999, Mr Attallah was present, and so was Ms Walsh, the Second Respondent, who still helps him with his business affairs, and who also appears to have made relevant concessions which were not refuted.
18. Against this evidence we have only Mr Attallah’s denials and the evidence of Mr Bartlett, a family friend, who has been trying to assist Mr Attallah stay on the correct side of the law, but saw no evidence of a “ sex on premises ” use in thirteen short visits over 15 months from Christmas 1998 to February 2000, all of them before 9pm, and ten of them in the daytime.
19. While I accept Mr Bartlett’s bona fides, I cannot find sufficient in his evidence to establish in my mind any reasonable doubt that the premises have continued to be used, at least on some occasions since September 1998, as a brothel or for the purposes of prostitution.
20. Mr Attallah is one subject of Cowdroy J’s orders. He continues to own the premises, and took personal charge of relevant construction works. Granting a lease to Sampson cannot take him outside the purview of those orders.
21. He admits to being regularly there. He enlisted Mr Bartlett’s help late in 1998 when he knew that street girls accessed health aids from his premises, and he showed Council Officers in February 1999 what was stored on the premises by way of health aids.
22. He asked Mr Bartlett to smoothe his path with the Council and the police. He says he conducted for a time an industrial activity in some of the rooms, but Mr Bartlett admitted to knowing of none, and observing none, despite both Mr Attallah and Mr Bartlett being on the site together on some of Mr Bartlett’s visits. Some of Mr Attallah’s oral testimony is inconsistent with his affidavit.
23. In the words of the High Court in Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113, I find Mr Attallah guilty of an “ omission which is in breach of an injunctive order ”, such as to constitute “ wilful disobedience unless it be casual, accidental or unintentional ”.
24. I am satisfied beyond reasonable doubt that Mr Attallah knew, and at least acquiesced in the use of the premises, and is, therefore, in contempt of the court’s orders regarding them.
25. The orders of this and other courts must be obeyed. Mr Attallah was warned by Council Officers, but the use continued.
26. Mr Wilson does not ask for a custodial penalty, but a substantial fine is called for and the Respondent must also pay the Council’s costs.
27. In arriving at the appropriate penalty I have had regard to the two judgments of this court in the matter reported as Warringah Council v Franks & Ors (40123 of 1997, Pearlman J, 19 May 1998 and 24 July 1998) and I will also allow a substantial time to pay the fine.
28. Mr Attallah, I find you guilty of contempt of the orders of this court made on 25 September 1998, and I order you to pay to the Registrar of this court a fine of $25,000 within six months of today’s date.
29. You are also ordered to pay the costs of the Council on a party-party basis, as agreed, or as assessed according to law, within 28 days of such agreement or assessment.
All the exhibits may be returned.
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