Blue Mountains City Council v Fowler - [2007] NSWLEC 476

Land and Environment Court

of New South Wales

CITATION: Blue Mountains City Council v Fowler [2007] NSWLEC 476

PARTIES:
APPLICANT
Blue Mountains City Council
RESPONDENT
Julian James Ronald Fowler

FILE NUMBER(S): 41025 of 2006

CORAM: Jagot J

KEY ISSUES: Contempt :- failure to comply with Court's order - motion adjourned to allow compliance - breach proved - breach wilful but not in deliberate defiance of Court - fine imposed - order vacating fine if minor outstanding works completed as required - finding of contempt and order for payment of Council's costs

LEGISLATION CITED: Local Government Act 1993

CASES CITED: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] 161 CLR 98 ;
Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 ;
Lade & Co Pty Ltd v Black [2006] QCA 294 ;
Witham v Holloway [1995] 183 CLR 525

DATES OF HEARING: 24/5/07, 11/7/07

EX TEMPORE JUDGMENT DATE: 11 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
Ms M Linkenbagh, solicitor
SOLICITORS
Houston Dearn O'Connor
RESPONDENT
Mr Julian JR Fowler (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

11 July 2007

41025 of 2006

BLUE MOUNTAINS CITY COUNCIL
Applicant

JULIAN JAMES RONALD FOWLER
Respondent
JUDGMENT

Jagot J:

1 This is a notice of motion by Blue Mountains City Council for orders that the respondent, Julian James Ronald Fowler, be found guilty of contempt of Court for disobeying order 1 made by this Court in these proceedings on 31 January 2007. The Council seeks that the respondent be punished for disobeying that order by fine, and an order that the respondent pay the Council’s costs of the notice of motion.

2 The statement of charge against the respondent is as follows:

That the Respondent is guilty of contempt of the Court in that in breach of Order 1 made by this Honourable Court on 31 January 2007 the Respondent did not complete all corrugated iron roofing to the full extent of the awning with roofing sheets that are not corroded and did not complete all guttering and downpiping to the new awning and connect this to the street kerb in respect to the premises comprised in Folio Identifier 1/67166 and known as 29 Govetts Leap Road, Blackheath within forty-five (45) days of the service of the order upon the Respondent.

3 The respondent, Mr Fowler, has formally entered a plea of not guilty to the charge although for reasons I will explain further it is clear that Mr Fowler accepts that he did not complete the works in accordance with the Court’s order.

4 To understand the genesis of the Council’s notice of motion it is necessary to refer to the Class 4 application the Council filed on 27 October 2006. In the Class 4 application the Council sought an order that the respondent comply with the terms of an order the Council had served on 18 April 2006 under s 124 of the Local Government…

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: [2007] NSWLEC 476
Decision Date: 11 July 2007

CaseChat Overview and Summary

Blue Mountains City Council initiated proceedings against Julian James Ronald Fowler in the Land and Environment Court of New South Wales, alleging that Fowler had failed to comply with an order made by the Court on 31 January 2007. The Council sought orders for Fowler to be found guilty of contempt of Court, for him to be fined, and for him to pay the Council's costs of the notice of motion. The Council claimed that Fowler had not completed all corrugated iron roofing to the full extent of the awning with roofing sheets that were not corroded and had not completed all guttering and downpiping to the new awning and connected it to the street kerb in respect to the premises at 29 Govetts Leap Road, Blackheath within the time period specified in the Court's order.

The key issues before the Court were whether Fowler's failure to comply with the Court's order constituted contempt, and if so, what the appropriate punishment should be. The Court considered the principles of contempt, drawing on relevant case law and statutory provisions. It found that the contempt was proved as Fowler had failed to comply with the Court's order in a wilful manner, though not in deliberate defiance of the Court. The Court imposed a fine of $2,000, which was suspended for 21 days, during which time Fowler was required to complete the outstanding works. If the works were completed within the specified time, the fine would be vacated; otherwise, the fine would become effective.

The Court's judgment concluded with specific orders for Fowler to complete the outstanding works by a certain date, for the Council to notify the Court whether the works had been completed, and for Fowler to pay the Council's costs of the notice of motion. This decision demonstrates the Court's balanced approach to enforcing compliance with its orders while also considering the circumstances and potential for remediation by the contemner.

Orders