Blacktown City Council v Reid - [2003] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION: Blacktown City Council v Reid [2003] NSWLEC 120

PARTIES:
APPLICANT
Blacktown City Council
RESPONDENT
Mark Reid also known as Craig Floyd
(second respondent in the proceedings)

FILE NUMBER(S): 40025 of 2001

CORAM: Pearlman J

KEY ISSUES: Contempt :- continuing contempt - penalty - committal - suspension on terms

LEGISLATION CITED:

CASES CITED: B v B (Contempt: Committal) [1991] FCR 386;
Blacktown City Council v Wilkie and Ors (2001) 119 LGERA 255;
Penrith City Council v 24/7 Waste Bins Pty Ltd and Anor [2002] NSWLEC 186;
Witham v Holloway (1995) 183 CLR 525;
Yager v Musa [1961] 2 QB 214

DATES OF HEARING: 13/05/2003

DATE OF JUDGMENT:
05/23/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr D R Parry (Barrister)
SOLICITORS
Houston Dearn O'Connor
RESPONDENT
Mr B V Dennis (Solicitor)
SOLICITORS
Dennis & Co

JUDGMENT:

40025 of 2001

Pearlman J
23 May 2003

BLACKTOWN CITY COUNCIL

Applicant

MARK REID also known as CRAIG FLOYD

Judgment

Introduction

1 By notice of motion, Blacktown City Council seeks a finding that the second respondent, Mark Reid (also known as Craig Floyd), is guilty of contempt of an order of this Court, and it seeks an order punishing him for that contempt.

2 The substantive proceedings have a long history. They involved the council seeking declaratory and injunctive relief against four respondents, Ms Misty Wilkie, Mr Mark Reid, Graveyard Recycling Pty Ltd and Mr Mario Constantine, in respect of the deposit of waste material (“the waste pile”) on land being part of lot 2 in DP 781151 situated at the corner of Grange Avenue and Richmond Road, Marsden Park (“the site”) – see Blacktown City Council v Wilkie and Ors (2001) 119 LGERA 255 (“the principal judgment”).

3 The present application concerns only the second respondent, and the application can be understood by reference to the following relevant facts:

5. … order the second respondent…to remove from the site existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order.

This order shall remain on foot and with full force and effect whether or not order 6 has come into operation.

“order 6”

(2) On 24 June 2002, the Court made a finding that the second respondent was guilty of contempt of order 5. He was sentenced to a period of…

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: [2003] NSWLEC 120
Decision Date: 05/23/2003

CaseChat Overview and Summary

The case of Blacktown City Council v Reid involved the Council seeking a finding of contempt against Mark Reid (also known as Craig Floyd) for his continued disobedience of an order to remove waste material from a site in Marsden Park. The Council argued that Reid had failed to remove the waste as ordered, despite previous findings of contempt and a suspended sentence. The primary issue before the Court was whether Reid had breached the order and, if so, what punishment should be imposed.

The Court found that Reid had indeed breached the order, as evidenced by multiple inspections of the site that showed little to no reduction in the waste pile. Despite serving a two-month sentence for a previous contempt, Reid had continued to disobey the order, demonstrating a pattern of non-compliance. The Court held that it had the authority to impose a longer sentence for continuing contempt and decided on a six-month imprisonment sentence, suspended for six months on specific terms.

Considering Reid's limited resources and capacity to remove the waste, the Court adjusted the terms of the suspension. Instead of requiring 500 tonnes of waste removal per month, the Court set a more realistic target of 50 tonnes per month. Other conditions included providing notice to a council officer before removing waste, jointly recording the details of each removal, and ensuring that only recorded waste would count towards the monthly target. The Court also noted that any further suspensions would be considered on a case-by-case basis.

The final orders included a finding of contempt, a six-month suspended prison sentence on the specified terms, and an order for Reid to pay the Council's costs related to the contempt application.

Orders