Blacktown City Council v Wilkie (No 12)

[2011] NSWLEC 238

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blacktown City Council v Wilkie (No 12) [2011] NSWLEC 238
Hearing dates:	6 December 2011
Decision date:	06 December 2011
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Hearing date vacated and consequential orders made
Catchwords:	PRACTICE AND PROCEDURE: application to vacate sentence hearing - multiple prior applications to vacate - adequacy of pre-sentence report - notice of motion filed challenging contempt charge as an abuse of process - hearing date vacated
Legislation Cited:	Civil Procedure Act 2005 ss 56, 58, 57, 59, 60
Cases Cited:	Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216
Category:	Interlocutory applications
Parties:	Blacktown City Council (Applicant) Craig Floyd (also known as Mark Reid) (Second Respondent)
Representation:	Mr S Shneider (solicitor) (Applicant) Ms K Longin (Second Respondent) Houston Dearn O'Connor (Applicant) Ms K Longin (Barrister) (Second Respondent)
File Number(s):	40025 of 2001

Ex Tempore Judgment

Mr Floyd Applies to Vacate the Hearing Date Again

1. This is an application by the second respondent, Mr Craig Floyd (also known as Mr Mark Reid), that the sentence hearing listed on 8 December 2011, for his guilty plea to contempt of Court orders, be vacated.

1. As set out in my earlier judgment of Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216 these proceedings have a tortured past and have been beset by many applications for adjournments and considerable delay, almost exclusively on the part of either Mr Floyd or his legal advisers. For example, this is the fifth time that there has been a vacation of a hearing date for these proceedings and, in particular, at least the fourth time that the sentence hearing, pursuant to the plea of guilty entered by Mr Floyd on 28 June 2010, has been vacated by the Court. On the last occasion a vacation application was made by Mr Floyd, the Court expressed the strident view that it was inconceivable that a further vacation of the sentence hearing would be entertained. However, this is the position the Court now finds itself in.

1. The application is made on several bases. First, when the matter was last before the Court a pre-sentence report was ordered. At the time, the parties, and the Court, understood that the report would, as is normally the case, take at least five to six weeks to prepare.

1. A request for a pre-sentence report was made by the Court on 23 November 2011 in the following terms:

The Land and Environment Court of New South Wales has requested a report in the above case that has been adjourned.

Next listing date: 8 December 2011.

The request went on to state that the report was "required" by "5 December 2011".

1. In fact, and surprisingly, this is the date the pre-sentence report was furnished. That is to say, almost four weeks earlier than expected.

1. It is fair to say, and in this regard I accept the submission of Ms Katica Longin, appearing on behalf of Mr Floyd, that the pre-sentence report is slender both in terms of its length and content. No doubt the reason for this is because of the speed with which the report was generated, driven by the information from the Court that the report was "required" by "5 December 2011". Ms Longin submits, which Mr Steven Shneider (appearing for the council) did not disagree with and which I also accept, that such a report would typically contain considerably more fulsome information concerning the offender and, in particular, details, if any, of the factors in mitigation that are relevant to an appropriate determination of sentence. This information is absent from the report before the Court. I agree with Ms Longin that the Court would be assisted by a more complete pre-sentence report in relation to Mr Floyd.

1. This alone, Ms Longin submits, is a sufficient basis upon which the hearing date should be vacated. A second basis is premised on the fact that the last time the matter was before the Court for mention it was universally envisaged that there was a real possibility that the hearing date would need to be vacated because the five to six week estimate given to obtain a pre-sentence report meant that it would not arrive in time for the sentence hearing on 8 December 2011. As a result, neither party is properly prepared for the forthcoming sentence hearing. I have some sympathy with this argument.

1. Ms Longin also raised several additional reasons why the hearing date should be vacated. These are in large part predicated upon the additional matters raised by Mr Floyd in his amended notice of motion filed on 16 December 2011 (specifically, the matters contained in paragraphs 2-9).

1. It should be noted that when it was foreshadowed by Mr Floyd that a notice of motion would, in all likelihood, be filed seeking a vacation of the hearing on 8 December 2011, this was principally on the basis that the pre-sentence report would not be available and because Ms Longin was having difficulty obtaining instructions from Mr Floyd. The additional matters raised in the amended notice of motion were not foreshadowed at that stage.

1. At the risk of an understatement, the issues raised in the amended notice of motion have come as a shock to both the council and the Court.

1. But these matters have now been raised and require the attention of the Court. They include, for example, that there are irregularities with the service of the further amended statement of charge and the notice of motion initiating the contempt proceedings; that there are irregularities with respect to the content of the notice of motion for contempt in so far as it details contempt of the Court's orders up to 1 May 2010, whereas the further amended statement of charge particularises the contempt extending to 1 May 2011. Furthermore, the plea of guilty is now sought to be withdrawn. This application will need to be supported by affidavit evidence from Mr Floyd that has not yet been obtained.

1. In addition, it is asserted that the further amended statement of charge and the accompanying notice of motion ought to be struck out in so far as the current proceedings constitute an abuse of process with respect to the principles of res judicata , double jeopardy and upon a plea of autrefois convict.

1. While it did not appear, based on the brief explanation given to the Court by Ms Longin, that the merit of these claims was particularly strong, plainly enough the claims raise issues that will need to be determined prior to any sentence being passed by the Court.

1. Given the extraordinary delay in achieving finality of these proceedings, the Court was tempted to proceed with the hearing of both the amended notice of motion and the determination of an appropriate sentence on 8 December 2011.

1. However, and somewhat reluctantly, this course ought not be pursued as it will not be "just, quick and cheap" as the overriding purpose contained in s 56 of the Civil Procedure Act 2005, informed by ss 58-60 of that Act, demands.

1. First, to proceed on 8 December 2011 would not be "just". This is because Mr Shneider, expecting neither the pre-sentence report nor the issues raised in the amended notice of motion, would not be ready to proceed with either the sentence proceedings or the amended notice of motion on that day. Given the innumerable indulgences afforded to Mr Floyd in these proceedings, no criticism can be levelled against either Mr Shneider or the council in this regard.

1. Equally, to proceed on 8 December 2011 will be neither "quick" nor "cheap" because only one day has been set aside to hear the matter and given the extensive nature of the issues raised in the amended notice of motion, the hearing of the motion, let alone any determination of Mr Floyd's sentence, would be unlikely to conclude in the time allocated. This would necessitate the unsatisfactory bifurcation of the proceedings into the following year.

1. In these circumstances, therefore, the Court has little option but to, once again, vacate the imminent hearing date.

1. In so doing, the Court reserves the question of costs exclusively on the basis that one of the issues that has been raised in the amended notice of motion is whether or not the Court has the power to award costs in contempt proceedings. Were it not for this issue, the Court would have been minded to award any costs occasioned by reason of the vacation in favour of the council. Such an order has been previously made in the proceedings by the Court.

Orders

1. The orders of the Court are therefore as follows:

(1) the hearing date on 8 December 2011 is vacated;

(2) the applicant is granted leave to amend its notice of motion filed 13 May 2010;

(3) any amended notice of motion of the applicant is to be filed and served by 16 December 2011;

(4) service of the above amended notice of motion is to be effected by service on the address given by the second respondent in his affidavit sworn 5 December 2011, namely, 24 George St, East Gosford;

(5) the second respondent is to file and serve its evidence and submissions in respect of paragraphs 2-9 of the amended notice of motion filed 6 December 2011 by 20 January 2012;

(6) the applicant is to file and serve its evidence and submissions in reply by 17 February 2012;

(7) the parties are to confer and email Pepper J's chambers by no later than 4pm 7 December 2011, with a range of suitable dates for the hearing of paragraphs 2-9 of the amended notice of motion filed 6 December 2011, such dates to be not before 2 March 2012;

(8) the costs of today's vacation application are reserved; and

(9) the parties have liberty to restore on 48 hours notice.

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Decision last updated: 08 December 2011