Campbelltown City Council v Toth - [2005] NSWLEC 89

Land and Environment Court

of New South Wales

CITATION:
Campbelltown City Council v Toth [2005] NSWLEC 89

PARTIES:
Campbelltown City Council
Tim Toth

FILE NUMBER(S):
41179 of 2004

CORAM:
Cowdroy J

KEY ISSUES:
Contempt :- Order restraining use of premises as sex shop - trading continuing - respondent relying upon purported sale of business - sale not bona fide - respondent guilty of continuing illegal use or alternatively permitting use.

LEGISLATION CITED:
Environmental Planning & Assessment Act 1979 s 65
Land and Environment Court Act 1979 s 56A
Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Act 1970 s 123
Supreme Court Rules 1970 Pt 55
Campbelltown (Urban Area) Local Environmental Plan 2002 cl 13(5)
Campbelltown Sex Industry Development Control Plan 2003

CASES CITED:
Bankstown City Council v Attallah and Anor [2000] NSWLEC 133;
Concrete Constructions Pty Ltd and Anor v Plumbers and Gasfitters Employees' Union and Anor (No 2) (1987) 15 FCR 64;
De Gruchy v The Queen (2002) 211 CLR 85;
Lizzio and Anor v The Council of the Municipality of Ryde (1983) 155 CLR 211;
Mallon and Anor v Allon [1964] 1 QBD 385;
Miller v Quinn and Anor [1977] 2 NSWLR 198;
Samuel Peacock v The King (1912) 13 CLR 619;
Seaward v Paterson [1897] 1 Ch 545;
Walsh v Tattersall (1996) 188 CLR 77;
Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING: 11/02/2005

EX TEMPORE JUDGMENT DATE:
02/14/2005

LEGAL REPRESENTATIVES:
APPLICANT
A M Pickles (Barrister)
SOLICITORS
Abbott Tout
RESPONDENT
T To (Barrister)
SOLICITORS
Hancocks Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

14 February 2005

41179 of 2004

CAMPBELLTOWN CITY COUNCIL
Applicant

TIM TOTH
Respondent
JUDGMENT

1 Cowdroy J: By statement of charge dated 25 November 2004 the prosecutor (the applicant) charges the alleged contemnor (the respondent) that he disobeyed Order 1 made by the Court on 14 October 2004 (“the Order”) in that he continued to use, suffer, or permit to be used premises known as 1/25 Blaxland Road, Campbelltown (“the premises”) for the purposes of a sex shop, without consent of the applicant having been obtained as required by the Environmental Planning & Assessment Act 1979 (“the EP&A Act”). The particulars allege that on 28 October 2004 and on 8 November 2004 the premises were used for the proscribed purpose. The respondent has pleaded not guilty to the charge.

2 The Order provides:

The Respondent by himself, his servants and agents be restrained, from 21 October 2004, from using suffering or permitting to be used 1/25 Blaxland Road, Campbelltown for the purposes of a sex shop without the consent of the Applicant having been obtained beforehand as required by the

The applicant’s evidence

3 The affidavit of Edren Ravino, a development officer employed by the Campbelltown City Council (“the Council”), sworn 24 November 2004 refers to an inspection of the premises which he made on 25 October…

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: [2005] NSWLEC 89
Decision Date: 02/14/2005

CaseChat Overview and Summary

In this case, the Campbelltown City Council (the applicant) brought proceedings against Tim Toth (the respondent) in the Land and Environment Court of New South Wales, alleging that Toth had contravened a court order by continuing to use premises as a sex shop without the required consent. The applicant argued that Toth had not genuinely sold the business and had instead continued to permit the illegal use of the premises. The respondent pleaded not guilty. The court was required to determine whether Toth had indeed contravened the order by continuing to use or permit the use of the premises for the proscribed purpose.

The court considered the evidence presented by both parties, including affidavits from the applicant's officers and the respondent. The applicant's evidence showed that Toth had continued to operate the sex shop at the premises despite being ordered not to do so. The respondent argued that he had sold the business and subleased the premises to another party. However, the court found that the evidence of the sale and sublease was not credible, and that the respondent had actively permitted the premises to be used for the illegal purpose. The court concluded that Toth had contravened the order and was guilty of contempt.

The court's reasoning was based on the inconsistencies in Toth's evidence, the continued operation of the sex shop at the premises, and the lack of credible evidence of a genuine sale and sublease. The court rejected Toth's argument that the charge was duplicitous, finding that contempt proceedings are civil in nature and do not require the same pleading rules as criminal proceedings. The court found that Toth had acted contrary to the order and was guilty of contempt. The court did not provide final orders in the judgment but indicated that it would do so in due course.

Orders