Campbelltown City Council v Mark Theo Collins

[2003] NSWLEC 3

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Land and Environment Court

of New South Wales

CITATION:

Campbelltown City Council v Mark Theo Collins [2003] NSWLEC 3

PARTIES:

APPLICANT
Campbelltown City Council

RESPONDENT
Mark Theo Collins

FILE NUMBER(S):

40155 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Contempt :- adjournment of hearing
defendant's presence required at hearing of charges

LEGISLATION CITED:

Supreme Court Rules 1970

CASES CITED:

R v Fletcher and Another; Ex parte Kisch (1935) 52 CLR 248;
Sydney City Council v Danias (1986) 58 LGRA 387;
Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING:

29/10/2002

EX TEMPORE
JUDGMENT DATE :

10/29/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay (Barrister)

SOLICITORS
Marsdens

RESPONDENT
No appearance

JUDGMENT:

40155-02-Campbelltown CC v Collins.rtf

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40155 of 2001

Cowdroy, J

29 October 2002

Campbelltown City Council

Applicant
v

Mark Theo Collins

Respondent

Judgment

1 The applicant moves the Court by a Notice of Motion filed on 2 July 2002 alleging that the defendant is guilty of contempt of court. The statement of charge contained in such Motion alleges that the respondent as at 30 April 2002 has failed to comply with orders of the Court made on 19 December 2001.

2 The respondent is not present. His name has been called outside the Court on three occasions, but he has not appeared. A letter was sent by the solicitor’s for the applicant to the respondent at 21 Brae Street, Prospect on 12 July 2002 advising him of the callover held on 11 July 2002, and of the fact that this matter has been set down for hearing today and tomorrow 30 October 2002.

3 If at the conclusion of the evidence a finding of contempt of court is made, imprisonment or fine may be imposed. Contempt proceedings are criminal in nature (see R v Fletcher and Another; Ex parte Kisch (1935) 52 CLR 248 at 258; Witham v Holloway (1995) 183 CLR 525). Accordingly it is inappropriate that the matter should proceed in the absence of the respondent.

4 The Court will follow the practice previously adopted by this Court in Sydney City Council v Danias (1986) 58 LGRA 387 at p. 389. That is the Court will make an order under Pt 42 r7(e) of the Supreme Court Rules 1970 requiring the respondent to attend court. In default a warrant is to issue for his arrest.

Orders

5 Accordingly, the Court will make the following orders:

1. Order that the respondent Mark Theo Collins attend at the Land and Environment Court on level 10, 225 Macquarie Street, Sydney at 9.30am on Wednesday 30 October 2002 to answer the charges contained in the Notice of Motion.

2. In default of appearance at that time and place the applicant be at liberty to obtain an order for the arrest of the respondent, without further notice to the respondent.

3. Direct that the above order be served upon the respondent by no later than 9pm on Tuesday 29 October 2002