Bathurst City Council v Stamatopoulos
[2001] NSWLEC 181
•12/13/2001
Land and Environment Court
of New South Wales
CITATION: Bathurst City Council v Stamatopoulos [2001] NSWLEC 181 revised - 14/12/2001 PARTIES: APPLICANT
RESPONDENT
Bathurst City Council
StamatopoulosFILE NUMBER(S): 40189 of 1999 CORAM: Cowdroy J KEY ISSUES: Contempt :- court order allegedly breached - charge dismissed LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 55CASES CITED: Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 ;
Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98;
Shea v O'Shea and Parnell; ex parte Tuohy (1980) 15 PD 59 ;
Witham v Holloway (1995) 183 CLR 525DATES OF HEARING: 6/11/00, 7/11/00, 8/11/00, 14/5/01, 15/05/01, 23/7/01, 23/11/01, 29/11/01 DATE OF JUDGMENT:
12/13/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr W Davison SC with Mr P Clay (Barrister)SOLICITORS
McIntosh McPhillamyRESPONDENT
SOLICITORS
Mr P Hastings QC with Mr J Robson (Barrister)
McPhee Kelshaw Solicitors
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40189 of 1999
CORAM: Cowdroy J
DECISION DATE: 13/12/01
Introduction
1. By amended notice of motion filed on 7 August 2000, the prosecutor, Bathurst City Council (“the council”), charges the respondents with contempt of court. The motion is moved pursuant to the provisions Pt 55 of the Supreme Court Rules 1970 which are adopted by this Court by Pt 6 r 1 of the Land and Environment Court Rules 1996. The respondents have pleaded not guilty to the charges.
Facts
2. On 10 November 1999 the respondents consented to orders restraining the use of their land which comprises a property known as Brooklyn at 151 Mountain Straight, Mt Panorama, otherwise known as the “Mt Panorama Estate”.
3. The Mt Panorama Estate comprises Lot 14 in DP 785327 (“Lot 14”) which has a western frontage to Mountain Straight and Lot 10 in DP 732716 which joins Lot 14 on its eastern boundary and is known as 527 Conrod Straight, Mt Panorama (“Lot 10”). Lot 14 contains a substantial two storied structure (“the building”) the ground floor of which is a restaurant and the upper floor is a residence of the respondents. The restaurant has a separate entrance on the Mountain Straight frontage of the building. There was another entrance on the northern side of the building which provided internal access to a staircase leading to the first floor residence.
4. The consent orders dated 10 November 1999 (“the consent orders”) provided as follows:-
1. The respondents be restrained from using or permitting to be used Lot 14 DP 785327 known as 151 Mountain Straight, Mount Panorama (“Lot 14”) for the conduct of a restaurant during those periods when Mount Panorama Circuit is closed for motor racing events or at other times when promotional activities are being undertaken at the circuit.
2. The respondents be restrained from using Lot 14 in breach of the Environmental Planning and Assessment Act 1979.
3. The respondents be restrained from using Lot 10 DP 732716 known as 527 Conrod Straight, Mount Panorama (“Lot 10”) in breach of the Environmental Planning and Assessment Act 1979.
4. The respondents may let or licence Lot 10 but in that event shall impose as a condition of any Lease licence or occupation agreement of Lot 10 that the tenants or occupiers shall not use Lot 10 in breach of the Environmental Planning and Assessment Act 1979.
5. The respondents be restrained from erecting or permitting to be erected on Lot 10 or Lot 14:
(a) any form of advertisement;
(b) any grandstand or other form of tiered seating;
(c) any marquee or similar form of shelter.
5. The statement of charge alleges that the respondents were guilty of contempt in that they:-
(a) used or permitted to be used Lot 14 DP 785327 known as 151 Mountain Straight Mount Panorama (“Lot 14”) for the conduct of a restaurant during the period when Mount Panorama Circuit was closed for motor racing events on 14 November 1999.
(b) used Lot 14 in DP 785327 in breach of the Environmental Planning and Assessment 1979.
(c) used Lot 10 DP 732716 known as 527 Conrod Straight Mount Panorama (“Lot 10”) in breach of the Environmental Planning and Assessment Act 1979.
(d) erected or permitted to be erected on Lot 14:-
(i) tiered seating in the form of a temporary grandstand.
(ii) a shade structure in the form of a marquee on 14 November 1999.
- (e) the respondent erected or permitted to be erected on Lot 10 a shelter in the form of a marquee on 14 November 1999.
6. For the reasons provided in the interlocutory judgment charges (b) and (c) were struck out. At the conclusion of the evidence the prosecutor abandoned particular (d)(i).
The evidence
7. David Ross Shaw and Neil Edward Allen, both officers of the council visited the Mt Panorama Estate on Sunday 14 November 1999 at approximately 2.40 pm.
8. On that day (“race day”) a motor race known as the “FAI 1000” was being conducted upon both Mountain Straight and Conrod Straight as such roads form part of the Mt Panorama motor racing circuit.
9. On Lot 10 they observed a shade structure that had been erected and noticed that there were approximately 50 people on the site. A number of those persons were wearing maroon coloured caps. Outside the restaurant approximately 30 cars were parked as well as a motor coach. Mr Allen said that many people were in the vicinity of the building and that he spoke to one person who was wearing a maroon coloured cap with the word ‘Komatsu’ embroidered on the front.
10. In addition Mr Allen observed a number of people dressed in black trousers or skirts with white shirts clearing tables and carrying empty beer and wine bottles on Lot 14. He observed a large servery on the verandah and saw plates with food scraps on tables both in and outside the restaurant. He estimates that approximately 150 people were in the area between the restaurant and boundary of Lot 14 at Mountain Straight, and that half of such people were wearing maroon coloured caps.
11. Mr Allen claimed to have observed a demountable grandstand constructed of metal scaffolding with seating erected on a mound of earth within Lot 14 facing Mountain Straight. Mr Allen saw approximately 20 people were sitting on the grandstand, most of whom were wearing maroon caps. Mr Allen observed that persons were moving between the grandstand and the restaurant.
12. At approximately 2.50 pm the council officers were approached by Mr Trevor Cork, who is the solicitor for the respondents. Mr Cork advised the council officers that 24 hours notice had not been given of their entry and they had no right to be on the property and that they were to leave immediately. As they departed from the premises they noticed two young women in black clothing carrying trays at the edge of a shade structure erected on Lot 14. Upon the trays there appeared to be food and bottled beer.
13. Mr Shaw confirmed the evidence of Mr Allen. He estimated there were approximately 50 people on Lot 10. He also observed the grandstand and confirmed that there were approximately 20 people seated on the grandstand erected on Lot 14.
14. Mr Theo Vallis, a chef, testified that he was hired by the respondent to cook at the respondent’s premises on race day. He arrived at the premises at 7 am to commence cooking at a barbeque located about 100 yards from the house. Mr Vallis remained at the premises until approximately 3.30 pm on that day, during which he cooked sausages and steaks for breakfast and lunch. For his services, Mr Vallis was paid a fee of $150 by the respondent. Mr Vallis testified that he was told by the first respondent that ‘if anyone asks who you work for, you work for Steve Kamatsis’. It can be assumed that Mr Vallis was referring to Mr Steve Jones, Sales Manager for Komatsu Pty Ltd.
15. Mr Vallis deposed to a conversation with the respondent which took place subsequent to race day in which the respondent showed him a cheque for the sum of $51,397, which was drawn in his favour and Ms Diane Rozga, another employee of the respondents. Mr Vallis initially said that the respondent asked him to sign it. The following is an extract of the conversation according to Mr Vallis:-
Q. And what did Mr Stamatopoulos say to you about the cheque?
- A. He said “Would you please sign it’ and I said ‘What’s this business?”. And he said “Just sign it to go to the bank, I’m not going to put your name on it” so I signed it. I trust him, he was my ex boss. I trust him so I signed the cheque.
Q. Did you receive any part of that $50,000?
- A. No I didn’t. I saw the cheque.
16. Mr Vallis noticed that the cheque was ‘from Mr Steve Komatsu’. No part of such monies was paid to Mr Vallis and he was not given any reason for the request that he sign it and he did not receive any payment for his services other than the amount of $150.
Respondent’s evidence
17. The first respondent testified that at 14 November 1999 he and his wife owned Lot 10 and Lot 14.
18. On race day the respondents had invited 30 to 40 friends and business associates to their residence for the purpose of watching the races. The first respondent said that the restaurant was not used on race day. The barbeque was positioned on the front lawn and guests ate at tables and chairs upstairs or at tables and chairs set up on the lawn. He testified that the restaurant entrance doors facing Mountain Straight remained shut throughout the races.
19. The first respondent said that no grandstand was erected on Lot 14. In 1998 a three-tiered structure had been erected on a mound fronting Mountain Straight. The respondent said that photographs showed a large marquee beside Conrod Straight on Lot 10 and a grandstand beside Mountain Straight that had been erected in 1998, but that neither had been erected in 1999.
20. From June 1999 the respondents had been negotiating with Mr Steven Jones concerning the house on Lot 10 and catering for 200 persons, similar to the arrangements made in the previous year. It was also proposed that a shade structure be provided on lot 10. Coach transport to the site and helicopter flights were arranged for the races by Komatsu.
21. Due to the council’s institution of injunctive proceedings the consent orders resulted in the arrangements being cancelled on 2 November 1999. However, the arrangements were reinstated shortly thereafter with Mr Jones as principal in lieu of Komatsu. The arrangements included the signing of a lease of the house on Lot 10 by Mr Jones for the use of Mr Jones and his guests for the duration of the races. The respondents were paid $51,000 by Komatsu for the hospitality, namely the food served throughout the day. The first respondent acknowledged that he received the payment by cheque for the arrangements, the proceeds of which were banked into his account.
22. Mr Jones occupied the house on Lot 10 on race day. The respondent erected a small shade structure near Conrad Straight which was approximately 13 feet by 13 feet.
23. On race day the first respondent said that Mr Jones asked whether his guests could watch the races from Lot 14 and such consent was granted. The first respondent said that no food was provided to those persons from the restaurant although there was no difference in the kind of food prepared by Mr Vallis for the Komatsu guests and the respondents’ guests. The first respondent denied that alcohol was provided to the guests of Mr Jones while they were on Lot 14. He testified that the respondents’ guests were required to obtain drinks from the first floor of the building because the restaurant doors were closed and locked.
24. The first respondent said that an invoice was separately prepared by him for the hire of the house in addition to an invoice for catering. He said that the latter invoice was issued in the name of his employees, Ms Rozga & T Vallis, ‘to beat the council’. In previous years, council had raised no objection to his use of the building on race day, but after a change in management at council, the respondent said that he had ‘been hounded by council’. Catering was provided for 200 people and a charge of $250 per head was made for food and drink provided by the respondent to the guests of Mr Jones. The first respondent said that liquor was purchased by Ms Rozga, from a retailer, Liquorland. No charge for liquor was debited to the restaurant.
25. Mr Trevor Cork, solicitor for the respondents, gave evidence that food was contained in bain maries outside the building. On the upper floor of the building Mr Cork saw tables, chairs and several television sets on the verandah and he said that breakfast was served outside the building on tables beside the house.
26. Mr Cork said that at approximately 9 am before the race began he directed that a sign bearing the name ‘Komatsu’ be removed as he considered it to be a breach of the orders. On Lot 10 Mr Cork saw a small tent without sides some distance to the north of the house. He estimated it to cover an area of 10 ft by 15 ft.
27. Mr Cork observed persons walking along the track from Lot 14 to Lot 10. He watched the races from the first floor verandah of the building. He said that there was no grandstand or structure on Lot 10 or Lot 14.
28. Mr Cork had lunch sitting at a table on the first floor of the building but said that food was served on the downstairs verandah. He said that meat was cooked in a portable barbeque trailer which was set up approximately 30 feet to the north west of the building and that the main doors to the restaurant remained closed. Mr Cork did not see any person enter the restaurant while he was present.
29. Mrs Stamatopoulos, the second respondent, also testified that family and friends were invited to their residence on the race day. She said that the restaurant was not used, although the kitchen and toilet facilities were used by their family and friends. The kitchen was used for cooking food for friends and guests of the respondents. She said that food was placed on the downstairs verandah for consumption. She confirmed that the main entrance doors of the restaurant remained closed on the 14 November 1999 and also the doors on the north side of the ground floor of the building which allowed internal access to the restaurant and residence. The bain maries containing food were placed in front of such doors. Food and drink was available outside the restaurant and was served by Mrs Stamatopoulos to their friends and guests. Alcohol was available on the verandah upstairs. She said no drink was available on the ground floor of the building.
30. Mrs Stamatopoulos said that in addition to the respondents’ guests, persons invited by Mr Jones were present in the vicinity of the building during the day. She also testified that Komatsu’s guests were not provided with food on Lot 14. She denied that such guests consumed any food or drink available for their own guests but conceded that if any person requested a drink she would not have refused to provide it.
31. Mr John Samuel Willoughby was a guest at the respondents’ premises on race day. He said that drinks were available from a refrigerator on the first floor verandah. Mr Willoughby said that whilst in previous years a marquee had been erected on that land on this occasion he said that there was only a small shelter. Mr Willoughby also said that the restaurant was locked.
32. Mrs Robin Joy Willoughby also gave evidence of the visit to the respondents’ premises on race day. She said that on arrival she and her husband went upstairs where they recognised other guests as friends of the respondents. She also testified that the main doors to the restaurant remained closed, as well as the doors to the north side, and that no person was inside the restaurant.
33. Steven John Jones provided both affidavit and oral evidence. Mr Jones gave evidence concerning the arrangements made for the lease of Lot 10. He said that Lot 10 was to be available to the guests of Komatsu, and also, that there was to be provision of cold drinks and limited food. He said that food and drink was supplied at lot 10 by staff of Mr Stamatopoulos.
34. Mr Jones said that his guests were invited to attend the residence of Mr Stamatopoulos for the purpose of viewing the races. Mr Jones observed persons who he believed to be friends of Mr Stamatopoulos to be present outside the building on lot 14 sitting at tables and chairs on the ground floor verandah.
35. A small shade structure had been erected on lot 10 as arranged with Mr Stamatopoulos. Its purpose was to shade a television set which was used to watch the races by guests of Komatsu.
Council evidence in reply
36. In reply, the council relied upon evidence of Mr Michael Moit who was a guest of Komatsu on the relevant day. Mr Moit testified that he was served food from the verandah of the ground floor of the building. Mr Moit said that he took food to a table inside the building on the ground floor. He estimated that approximately twenty other persons were sitting at tables, some inside the building. He also noticed persons walking in and out of the ground floor of the building.
38. Mr Moit said that he watched the race from Lot 14 for most of the day. Mr Moit could not recall a grandstand. Mr Moit recalled inspecting a Komatsu ‘drag car’ which was on display outside the building. However, in reply to Mr Moit’s evidence, the first respondent testified that the distinctive Komatsu ‘drag car’ which Mr Moit recalled inspecting was not on display in 1999 but rather in 1998. Although an opportunity was afforded to the prosecutor to call further evidence in respect of this issue, no further evidence has been adduced.
Onus of Proof
40. The onus of proof lies upon the prosecutor to establish the charges against the defendants beyond a reasonable doubt: see Witham v Holloway (1995) 183 CLR 525. Disobedience of an injunction is not a criminal offence: see Shea v O’Shea and Parnell; ex parte Tuohy (1980) 15 PD 59 per Cotton LJ at 62-63; Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 497 - 498; but sanctions may be imposed if a contempt is found: Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. The prosecutor is required to establish, upon the criminal standard of proof, that the defendants deliberately committed a breach of the orders. If the defendants establish that they were not guilty of wilful disobedience and that any breach was casual, accidental or unintentional, the charges must fail: see Australasian Meat Industry Employees’ Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 113.
a) Use of restaurant
41. The orders restrain the defendants from using ‘Lot 14 … for the conduct of a restaurant …’. In this respect the barbeque which was used for the guests of Komatsu was set up on Lot 14 about 50 yards from the building and slightly to the north-east thereof. Accordingly food was provided on the subject lot. The question is whether the Court can conclude beyond doubt that such actions constitute ‘the conduct of a restaurant’.
42. The evidence of the respondents establishes that the main doors of the restaurant were closed and that no trading by the restaurant took place on the race day but that food and drink was served to the respondents’ guests on the first floor of the building, the verandah of the first floor and the lawn in front of the restaurant. It is also apparent that guests of Komatsu visited Lot 14. Whilst they were present some may have received drinks if requested, as acknowledged by Mrs Stamatopoulos. However there is no evidence that the arrangements between the respondents and Komatsu involved the use of the restaurant on Lot 14.
43. No member of the public was invited or admitted to Lot 14 unless they were invitees of the defendants. Only Mr Moit’s evidence suggested that there were persons sitting inside the restaurant. All other evidence suggests that the restaurant was closed. Because of the uncertainty surrounding the precise year of his observations, the Court cannot rely upon the evidence of Mr Moit as establishing beyond a reasonable doubt that the restaurant in the building was used. Similarly, the Court is satisfied that the evidence of the council officers concerning the existence of a grandstand on lot 14 was wrong, despite their adherence to it in cross-examination. The Court is prepared to accept that they were both mistaken. However the fact that their evidence was erroneous undermines the credibility of all other evidence by them where conflict exists and leads to the conclusion that the Court could not rely upon it.
44. For these reasons, the Court concludes that the prosecutor has not discharged the onus of proof that Lot 14 was used or permitted to be used for the conduct of a restaurant.
b) The Marquee on Lot 10
45. The shade structure on Lot 10 was used for the purpose of sheltering a television set and keeping drinks cold. Its size was clearly different to that of a marquee which connotes a substantial or at least large tent-like structure of a kind that had been erected on Lot 10 in 1998. Accordingly, this charge has not been established.
c) Marquee on Lot 14
46. No submissions were made by the council in relation to this allegation. Assuming a shelter was erected on Lot 14 the Court is satisfied that it does not fit the description of a ‘marquee or similar form of shelter’.
Additional findings
47. The defendants were clearly anxious to circumvent the orders and to ‘beat the council’. The first respondent clearly intended to disguise the fact that the respondents were providing hospitality to the guests of Komatsu by the provision of the barbeque operated by Mr Vallis. It is only that the hospitality provided cannot be properly characterised as ‘the conduct of a restaurant’ that the respondents will avoid a conviction on this charge.
48. The respondents had taken elaborate steps to disguise the true nature of the transactions between themselves, Mr Jones and Komatsu and of the employment of Mr Vallis. The arrangement concerning the negotiation of the cheque for the services provided to Mr Jones could constitute a fraud on the revenue. However, this Court is not concerned with such issue.
49. The respondents’ conduct narrowly avoids the conclusion that a breach of the orders has occurred. The evidence of the council officers, and of Mr Moit is unreliable. The prosecutor’s case was essentially dependant upon the acceptance of such evidence. Due to the acknowledged inaccuracies in such evidence, the Court could not determine that the requisite standard of proof has been satisfied.
50. Since similar arrangements existed on race day to those of the previous year the council was justified in holding the belief that the orders had been defied. However, on examination of the facts the charges have not been established because the prosecutor has failed to discharge the onus of proof.
Orders
51. The Court orders that:-
1) The proceedings be dismissed.
2) Costs be reserved.
3) The exhibits be returned.
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