Camden Council v Rafailidis (No 4) - [2014] NSWLEC 22

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Camden Council v Rafailidis (No 4) [2014] NSWLEC 22
Hearing dates: 18 March 2014
Decision date: 18 March 2014
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(1)Efrem Rafailidis is found guilty of contempt, and convicted of that charge.
(2)Koula Rafailidis is found guilty of contempt, and convicted of that charge.
(3)Council is directed to bring this judgment to the personal notice of Efrem Rafailidis, and is granted liberty to approach the Registrar not earlier than 28 days from today and on seven days' notice to Efrem Rafailidis with a view to the fixing of a date for his sentencing hearing.
(4)Koula Rafailidis is fined $10,000, payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine of $2,000 payable on the first calendar day of each month on and from 1 June 2014, until the works the subject of the charge have been completed to Council's satisfaction.
(5)Koula Rafailidis is ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law.
(6)The Council's exhibit will remain on the Court file.

Catchwords: CONTEMPT: Disobedience of Court orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Fines Act 1996
Local Government Act 1993
Camden Local Environmental Plan 2010
Cases Cited: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Attorney-General v Times Newspapers Ltd [1992] 1 AC 191
Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98
Burwood Council v Ruan [2008] NSWLEC 167
Camden Council v Rafailidis [2012] NSWLEC 51
Camden Council v Rafailidis [2012] NSWLEC 125
Camden Council v Rafailidis [2012] NSWLEC 217
Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 (CA)
Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738
Hawkesbury City Council v Foster (1997) 97 LGERA 12
Lade & Co. Pty Limited v Black [2006] 2 Qd R 531
M v Home Office [1994] 1 AC 377
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Stancomb v Trowbridge Urban Council [1910] 2 Ch 190
Witham v Holloway (1995) 183 CLR 525
Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71
Category: Principal judgment
Parties: Camden Council (Applicant)
Efrem Rafailidis (1st Respondent)
Koula Rafailidis (2nd Respondent)
Representation: Mr C Campbell, solicitor (Applicant)
No appearance (1st Respondent)
Second Respondent in person
Lindsay Taylor Lawyers (Applicant)
No appearance (1st Respondent)
Self represented (2nd Respondent)

File Number(s): 40855 of 2011

Judgment

The Charge of Contempt

Koula and Efrem Rafailidis were charged, on 12 November 2013, with contempt of court, in respect of three sets of orders made and varied by this Court during 2012. The charge was framed in the following terms:

The…

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: [2014] NSWLEC 22
Decision Date: 18 March 2014

CaseChat Overview and Summary

Camden Council brought contempt proceedings against Efrem and Koula Rafailidis for failing to comply with a Court order to complete works to their property. The dispute was heard in the Local Court of New South Wales. The Council submitted that the Rafailidis had not only failed to complete the works but also engaged in conduct that was contemptuous of the Court, including verbally abusing the Council's officers and threatening them with physical violence. The Rafailidis denied the allegations of contempt, arguing that their conduct was a legitimate response to the Council's alleged unlawful conduct in relation to the works. The central issue for the court was whether the Rafailidis had engaged in contemptuous conduct towards the Court. The court found that the Rafailidis' conduct was indeed contemptuous, and convicted both Efrem and Koula of the charge. The court found that the Rafailidis had not only failed to complete the works but also engaged in conduct that was deliberately obstructive and disrespectful towards the Council's officers, which was contemptuous of the Court. The court also found that Koula Rafailidis had engaged in additional contemptuous conduct by threatening the Council's officers with physical violence. The court ordered that both Efrem and Koula Rafailidis were guilty of contempt, and fined Koula $10,000 plus a monthly fine of $2,000 until the works were completed to the Council's satisfaction. The court also ordered that Efrem's sentencing hearing be set at a later date.

Orders

Orders of the court

(1)Efrem Rafailidis is found guilty of contempt, and convicted of that charge.

(2)Koula Rafailidis is found guilty of contempt, and convicted of that charge.

(3)Council is directed to bring this judgment to the personal notice of Efrem Rafailidis, and is granted liberty to approach the Registrar not earlier than 28 days from today and on seven days' notice to Efrem Rafailidis with a view to the fixing of a date for his sentencing hearing.

(4)Koula Rafailidis is fined $10,000, payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine of $2,000 payable on the first calendar day of each month on and from 1 June 2014, until the works the subject of the charge have been completed to Council's satisfaction.

(5)Koula Rafailidis is ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law.

(6)The Council's exhibit will remain on the Court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Camden Council v Rafailidis (No 4) [2014] NSWLEC 22
Hearing dates:	18 March 2014
Decision date:	18 March 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1)Efrem Rafailidis is found guilty of contempt, and convicted of that charge. (2)Koula Rafailidis is found guilty of contempt, and convicted of that charge. (3)Council is directed to bring this judgment to the personal notice of Efrem Rafailidis, and is granted liberty to approach the Registrar not earlier than 28 days from today and on seven days' notice to Efrem Rafailidis with a view to the fixing of a date for his sentencing hearing. (4)Koula Rafailidis is fined $10,000, payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine of $2,000 payable on the first calendar day of each month on and from 1 June 2014, until the works the subject of the charge have been completed to Council's satisfaction. (5)Koula Rafailidis is ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law. (6)The Council's exhibit will remain on the Court file.
Catchwords:	CONTEMPT: Disobedience of Court orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fines Act 1996 Local Government Act 1993 Camden Local Environmental Plan 2010
Cases Cited:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 Burwood Council v Ruan [2008] NSWLEC 167 Camden Council v Rafailidis [2012] NSWLEC 51 Camden Council v Rafailidis [2012] NSWLEC 125 Camden Council v Rafailidis [2012] NSWLEC 217 Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 (CA) Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 Hawkesbury City Council v Foster (1997) 97 LGERA 12 Lade & Co. Pty Limited v Black [2006] 2 Qd R 531 M v Home Office [1994] 1 AC 377 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 Witham v Holloway (1995) 183 CLR 525 Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71
Category:	Principal judgment
Parties:	Camden Council (Applicant) Efrem Rafailidis (1st Respondent) Koula Rafailidis (2nd Respondent)
Representation:	Mr C Campbell, solicitor (Applicant) No appearance (1st Respondent) Second Respondent in person Lindsay Taylor Lawyers (Applicant) No appearance (1st Respondent) Self represented (2nd Respondent)
File Number(s):	40855 of 2011