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Burwood Council v Ruan

Burwood Council v Ruan

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Case Copied 8 April 2008 21 min read

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Land and Environment Court

of New South Wales

CITATION: Burwood Council v Ruan [2008] NSWLEC 167

PARTIES:
APPLICANT:
Burwood Council
RESPONDENTS:
Han Wen Ruan and Xiang Hua Zhao

FILE NUMBER(S): 40996 of 2006

CORAM: Biscoe J

KEY ISSUES: Contempt :- Disobedience of a court order - meaning of disobedience - classes of contempt - sentencing for contempt - whether fine should be apportioned when two contemnors disobey an order that binds each - whether consent order prohibiting a use of premises pre-supposed a use that was in breach of a development consent condition.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Land and Environment Court Rules 2007 (NSW), Pt 3 r 9
Supreme Court Rules 1970 (NSW), Pt 55 r 13
Uniform Civil Procedure Rules 2005 (NSW), r 40.6

CASES CITED: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Attorney-General v Times Newspapers Ltd [1992] 1 AC 191
Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Australasian Meat Industry Employees’ Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98
Bankstown City Council v Attalah [2000] NSWLEC 133
Blue Mountains City Council v Fowler [2007] NSWLEC 476
Campbelltown City Council v Toth [2005] NSWLEC 186
EPA v Thaler [2005] NSWLEC 109
Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469
Environment Protection Authority v Waight [2003] NSWLEC 124
Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225
Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738
Harkianakis v Skalkos (No 2) (unreported, NSWCA, 15/10/07)
Lade & Co. Pty Limited v Black [2006] 2 Qd R 531
M v Home Office [1994] 1 AC 377
Manly Council v Arslan [2005] NSWLEC 646
Newcastle City Council v Leaway Pty Limited [2005] NSWLEC 305
Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306
Parramatta City Council v Roy D R Services Pty Limited [2005] NSWLEC 756
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527
Principal Registrar of Supreme Court (NSW) v Tran (2006) 166 A Crim R 393
R v Razzak (2006) 166 A Crim R 132
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
South Sydney City Council v Sunny Soon Kiat Liu [1998] NSWLEC 298
Steiner Products Ltd v Willy Steiner Ltd [1966] 1 WLR 986; [1966] 2 All ER 387
Witham v Holloway (1995) 183 CLR 525
Wood v Staunton (No 5) (1996) 86 A Crim R 183

DATES OF HEARING: 8 April 2008

EX TEMPORE JUDGMENT DATE: 8 April 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr T To, barrister
SOLICITORS
Houston Dearn O'Connor
RESPONDENTS:
Mr M Gelbert, barrister
SOLICITORS
McGrath Dicembre & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 April 2008

40996 of 2006

BURWOOD COUNCIL v RUAN HAN…

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: [2008] NSWLEC 167
Decision Date: 8 April 2008

CaseChat Overview and Summary

The case of Burwood Council v Ruan was heard by Biscoe J in the Land and Environment Court of New South Wales. The Council brought proceedings against the respondents, Han Wen Ruan and Xiang Hua Zhao, seeking to enforce a consent order made on 24 November 2006, which restrained the respondents from breaching a condition of a development consent that prohibited the use of premises at 1A Belmore Street, Burwood as a brothel or for any sex-related activity. The respondents pleaded guilty to one charge of contempt of court by disobeying the consent order. The court had to decide the appropriate sentence for the respondents' disobedience. The court considered various legal principles, including the meaning of disobedience, the classes of contempt, and the factors relevant to sentencing for contempt. After considering the circumstances of the case and the relevant authorities, the court decided that the respondents' contempt was wilful but not contumacious. The court also rejected the respondents' submission that the fine should be apportioned equally between them, as each respondent was individually bound by the order. Ultimately, the court ordered that each respondent be fined $10,000 and pay the applicant's costs.

In summary, the court found the respondents guilty of contempt for disobeying a court order and imposed a fine of $10,000 on each respondent. The court rejected the argument for apportionment of the fine and considered various factors, including the seriousness of the contempt, the respondents' awareness of the consequences of their actions, and the need for general deterrence and denunciation of the conduct. The court compared the present case with other cases of contempt involving disobedience of court orders and found that the appropriate penalty in this case was a fine of $10,000 for each respondent.

Orders