Botany Bay City Council v Remath Investments No. 6 Pty Ltd

[1998] NSWLEC 209

Land and Environment Court

of New South Wales

CITATION:	AVERINE BEATRIX JUSTELIUS v. PITTWATER COUNCIL [1998] NSWLEC 209 (24 July 1998) [1998] NSWLEC 19
PARTIES:	AVERINE BEATRIX JUSTELIUS v. PITTWATER COUNCIL [1998] NSWLEC 209 (24 July 1998)
FILE NUMBER(S):	20001 of 1996
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:
DATES OF HEARING:	24 July 1998
EX TEMPORE JUDGMENT DATE :	07/24/1998
LEGAL REPRESENTATIVES:	Mrs A Justelius Ms S Duggan

JUDGMENT:

HIS HONOUR: In this matter by amended notice of motion dated 30 June 1998 and filed on 1 July 1998 the Pittwater Council alleged that the respondent Averin Beatrix Justelius had committed a contempt of Court by her alleged failure to fulfil the undertaking which was given to the Court on 25 September 1997. The matter was called this morning and in place of the respondent, Mrs Justelius, Mr Justelius appeared and indicated to the Court that he appeared with the consent of Mrs Justelius who is his wife.

It was indicated that Mrs Justelius was unwell and in receipt of treatment and was not able to attend court today. I subsequently adjourned the matter from 10 o'clock to 10.30 to enable inquiries to be made of the name of the medical practitioners who are treating Mrs Justelius. At 10.30 the matter was called again and due to the absence of Mr Justelius I adjourned the proceedings until 10.50.

On that occasion Mr Justelius informed me that one of the doctors treating Mrs Justelius was a psychiatrist whose name I shall spell, Dr Subau whose telephone number was 9906.8111. He also informed me that Mrs Justelius had consulted that medical practitioner approximately two weeks prior to today at his premises at the North Shore Hospital.

In addition, Dr Barry Stevens, a medical practitioner--

JUSTELIUS: North Shore Medical Centre.

HIS HONOUR: I beg your pardon?

JUSTELIUS: North Shore Medical Centre.

HIS HONOUR: I am sorry, thank you, at the North Shore Medical Centre, not the North Shore Hospital.

JUSTELIUS: She's been seeing him for two weeks.

HIS HONOUR: Dr Barry Stevens is also indicated as being the general practitioner. Dr Stevens' telephone number was not readily available but he is apparently a practitioner at the Avalon Medical Centre.

JUSTELIUS: Excuse me, your Honour, I've got that number now. Would you like it?

HIS HONOUR: No, thank you, Mr Justelius. In any event, it transpired that Mrs Justelius had been able to perform her usual occupation of a nurse and was employed at the Qantas Depot near Sydney Airport. She had been at work during the days immediately preceding this hearing and was due to be rostered on again tomorrow, that is Saturday 25 July.

It also appeared that Mrs Justelius was rostered off today. In consequence of this revelation it was arranged that Mrs Justelius would in fact appear at court this afternoon at 2pm and accordingly the need to take any enforcement procedures to secure her attendance became unnecessary.

Mrs Justelius has appeared at court and there has been lengthy negotiations between the parties. I note that those negotiations have taken place over a considerable period of time and I was requested to remain off the bench until approximately 2.45pm. In consequence of those negotiations a resolution of the current proceedings has been reached. It is therefore not necessary for the Court to consider the question of whether the statement of charge contained in the amended notice of motion has been established and the Court does not proceed to deal with that in any way.

A document entitled short minutes has been prepared and signed on behalf of the Council by its counsel and by Averin Justelius and also by Mr David Justelius who has assisted Mrs Justelius on many occasions before the Court. It is apparent from the short minutes that they in effect supersede the undertaking which was provided to the Court on 25 September 1997 by Mrs Justelius. If implemented, the orders will effectively remove the source of the conflict between the parties.

I have explained to Mrs Justelius the effect of the orders which she has agreed to and I note that Mr Justelius is also in court and has heard the explanation of the orders read to Mrs Justelius. Mrs Justelius and Mr Justelius understand the effect of the orders proposed.

In these circumstances I consider it appropriate that I should accede to the request of the counsel for Pittwater Council and make orders in accordance with the short minutes.

Accordingly, the Court makes orders by consent numbered 1, 2, 3 and 4 of the document entitled short minutes and the Court notes the matters contained in paragraphs 5 and 6 of that document.

I should add that this matter upon an examination of the file indicates that it has a prolonged history. It must be made clear that the history records that this Court has not been responsible for any delay at any stage of the proceedings. There has been granted to Mrs Justelius extended and numerous adjournments of one kind or another and the Council simultaneously has not sought to press any orders before this Court.

Accordingly there has been no prior occasion when the Court has not dealt with any matter that has come before it and if it is to be suggested that the Court is in any way responsible for the prolongation of these proceedings such allegation is not borne out by the chronology of facts.

In summary, it appears that both parties have been content to permit the matter to remain on foot and the matter is yet again not finally disposed of, at least for another forty-two days. I congratulate the parties on reaching a concluded settlement. I hope that the matters which have now been reached will for once and for all end the dispute between the parties and I congratulate both Mrs Justelius and Mr Justelius and Miss Duggan on behalf of the Council for arriving at a settlement which is acceptable to both.

DUGGAN: Your Honour, I might be mistaken but I do not believe your Honour in your Honour's judgment noted the release from undertaking.

HIS HONOUR: Thank you. I finally will note that the undertaking which Mrs Justelius provided to the Court on 20 September is set aside and Mrs Justelius is released from fulfilling any requirement to comply with the matters contained in that undertaking.

JUSTELIUS: Your Honour, on behalf of Mrs Justelius and myself I'd like to say that we've received nothing but fair and reasonable treatment in the Land and Environment Court right from the beginning and at no stage has it ever disadvantaged us or have we not been given a fair hearing.

HIS HONOUR: Thank you, Mr Justelius. Those remarks will be noted.

JUSTELIUS: Thank you.

HIS HONOUR: The court will now adjourn.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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