Blacktown City Council v Wilkie

[2002] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION:

Blacktown City Council v Wilkie and Ors [2002] NSWLEC 122

PARTIES:

APPLICANT
Blacktown City Council

RESPONDENTS
Wilkie and Ors

FILE NUMBER(S):

40025 of 2001

CORAM:

Pearlman J

KEY ISSUES:

Practice and Procedure :- failure to specify time for compliance with order - whether order defective - charge of contempt - application to have charge struck out

LEGISLATION CITED:

Land and Environment Court Rules 1996 pt 15 r 6

CASES CITED:

Australian Securities Commission v Macleod and Ors (No 2) (1993) 40 FCR 461

DATES OF HEARING:

21/06/2002; 24/06/2002

EX TEMPORE
JUDGMENT DATE :

06/24/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr D R Parry (Barrister)
SOLICITORS
Houston Dearn O'Connor

FIRST RESPONDENT
Ms L M Byrne (Barrister)
SOLICITORS
Roderick Storie

SECOND RESPONDENT
Mr B V Dennis (Solicitor)
SOLICITORS
Dennis & Co

THIRD RESPONDENT
no appearance
SOLICITORS
N/A

FOURTH RESPONDENT
Mr J S Wheelhouse (Barrister)
SOLICITORS
Delaney Lawyers

JUDGMENT:

IN THE LAND AND 40025 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 24 June 2002

BLACKTOWN CITY COUNCIL

Applicant

v

MISTY WILKIE

First Respondent

MARK REID also known as CRAIG FLOYD

Second Respondent

GRAVEYARD RECYCLING PTY LTD

Third Respondent

MARIO CONSTANTINE

Fourth Respondent

JUDGMENT

1. The matter with which I am concerned is a notice of motion brought by the first respondent in these proceedings, Misty Wilkie, seeking to have struck out the statement of charge alleging contempt on her part and to have the notice of motion for contempt dismissed.

2. Two bases are provided by Ms L Byrne, acting on behalf of the first respondent, for that application. The first is that the order, with which the first respondent is said not to have complied, fails to specify a date for compliance. The relevant order is order 6 made by this Court on 6 December 2001 and it provides as follows:

(6) The First Respondent remove from the site the 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. This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5, within that time, this order shall operate and be of full force and effect after that time.

3. Part 15 r 6(1) of the Land and Environment Court Rules 1996 (“the LEC Rules”) provides as follows:

6(1) An order which requires a person to do an act, other than the payment of money, must specify the time within which the person is required to do the act.

4. The failure of the order to comply with that Rule, in Ms Byrne’s submission, renders the statement of charge ineffective because it cannot specify the contempt, since no time for doing the work was specified in the order itself.

5. The second basis upon which Ms Byrne seeks to strike out the contempt proceedings is that the statement of charge failed to fully specify the terms of what constituted contempt.

6. The statement of charge is in the following terms:

The Respondent is guilty of contempt of the Court in that in breach of Order 6 made by this Honourable Court in these proceedings on 6 December 2001 the Respondent has failed to remove the waste from the land known as Part Lot 2 in the Deposited Plan 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the site”).

7. I shall deal with ground one first. It is patently obvious that a time for compliance was not specified, in express words, in the order. Mr D Parry, appearing on behalf of the council, argued, however, that the order must be construed and, if properly construed, it will be clear that the obligation was to remove the waste forthwith upon the day following the failure of the second and third respondents to do what they were required to do in order 5, that is, on day 36, and that the only question then is what was a reasonable time for the first respondent to have complied. Mr Parry drew attention to the fact that day 36, when the obligation came into full force and effect, was 11 January 2002 and the notice of motion alleging contempt was taken out on 26 February 2002, so that there was a period of time to deal with the order. It is some months since that period, so that there has been ample and reasonable time for compliance.

8. Mr Parry drew the Court’s attention to a decision of the Federal Court in Australian Securities Commission v Macleod and Ors (No 2) (1993) 40 FCR 461. At page 465, in dealing with a rule somewhat similar to pt 15 r 6, Drummond J said as follows:

It is certainly preferable for an order to specify, by reference to a nominated number of days or other intervals of time, the period within which an act required by an order must be done, especially in a case in which there is any possibility that the order will not be complied with. But I am not prepared to hold that this word, (and the word to which he refers is the word “forthwith”) , so commonly used in statutes, subordinate legislation and commercial documents, is a delimitation of the period of time within which an order can require an act to be done that is insufficient for the purposes of the rule. There is nothing in the words of [the rule] that would require a contrary conclusion .

9. The difficulty here, however, is that the order did not specify the word, “forthwith”. It is quite clear, in my opinion, and indeed Ms Byrne did not argue to the contrary, that the order came into full force and effect on day 36, the contingency not having happened, that is, that the second and third respondents had not fully complied with order 5. Try as I might, however, I cannot, from those words, derive any assistance to a period of time within which the order had to be complied with. It does not say “forthwith”. It does not say “immediately”. It merely says that an obligation to remove the waste came into force on that day, that is, immediately after the failure of the second and third respondents to comply with order 5.

10. I do not think that failure is cured by pt 15 r 6(2) of the LEC Rules which provides that the time is to be 21 days after the date of service of a copy of an order on the person required to do the act, unless the Court otherwise orders. Mr Parry submitted that, in this case, the Court had not otherwise ordered and so that rule could be interpreted as requiring compliance within 21 days after the order became operative. But that is not what pt 15 r 6(2) says. It says 21 days after the date of service of a copy of the order. At the date of service there was no obligation on the first respondent. It did not arise until a subsequent date and I do not think pt 15 r 6(2) cures the problem.

11. I think that this is a case where the order required considerable work, effort and expense in order to remove, as the order says, the 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. I think, in those circumstances, it is not appropriate to endeavour to construe the order so as to contain words that are simply not there. That would not be fair and just, in terms of the first respondent, who is faced with serious penalties, such as imprisonment, for failing to comply. I think the order is defective in that respect and I think, accordingly, that the order sought by the notice of motion should be granted.

12. It is not necessary for me to deal with the second ground but I think it is essential that I express an opinion upon it. It is claimed that the statement of charge did not fully set out the contempt which is alleged. I think that is not correct. It referred expressly to order 6 and it referred expressly to the removal of waste from the land. That is the obligation that has not been carried out and that, in itself, was enough to make the statement of charge fully informative to the first respondent. However, the problem is in the order itself and the problem is that no time is specified.

13. Accordingly, I make the following orders:

(1) The statement of charge alleging contempt filed by the applicant and dated 26 February 2002 is struck out.

(2) The notice of motion for contempt dated 26 February 2002 is dismissed.