Canterbury City Council v Fonua

[1999] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:

Canterbury City Council v Fonua and Ors [1999] NSWLEC 196

PARTIES

APPLICANT:
Canterbury City Council

RESPONDENTS:
Fonua and Ors

NUMBER:

40196 of 1995

CORAM:

Talbot J

KEY ISSUES:

Contempt; Orders :-

Contempt:-lack of certainty in the orders the subject of the charge - respondent trustees retired and new trustees appointed after orders made

Orders:- joinder of parties - effect of joinder to contempt proceedings after original orders made

LEGISLATION CITED:

DATES OF HEARING:

06/28/1999; 06/29/1999

DATE OF JUDGMENT DELIVERY:

08/27/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr W Terrancini QC

SOLICITORS:
Dunhill Madden Butler

RESPONDENTS:
Mr B Preston (Barrister)

SOLICITORS:
First Law Pacifica

JUDGMENT:

IN THE LAND AND Matter No. 40196 of 1995
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 27 August 1999

Canterbury City Council
Applicant

v
Semisi Fonua, Noble Tuivakano, Penilatu Tuugafasi, Fakapelea Afu, Fonokalafi Palu, Sione Vailea Haunga and Eneafi Toutui
(As Trustees for the Free Church of Tonga being an unincorporated association)
First Respondents
The Free Church of Tonga

Second Respondent

REASONS FOR JUDGMENT


1. These proceedings relate to premises situated at the corner of Mons Street, Lorking Street and Cressy Street, Canterbury which are held upon trust for the Free Church of Tonga, an incorporated association.

2. The hall erected on the land is used for the purposes of the church.

3. By Notice of Motion the applicant council seeks orders that the respondents be found guilty of contempt of this Court for:-


(i) Failing to comply with consent orders made on 2 December 1996; and

(ii) Breaching an undertaking to the Court that they would lodge a particular development application pursuant to the Environmental Planning and Assessment Act (the EP&A Act) within 21 days.


4. The parties concentrated on that part of the formal charge which specifically alleges a number of breaches of the consent orders over a period extending from 25 December 1996 to 27 April 1999.

5. The formal orders made by consent are as follows:-


Order 1: Unless and until development consent is obtained pursuant to the Environmental Planning and Assessment Act 1979, the respondent be restrained from using the premises for the purpose of a place of public worship at Lot 1 DP S20091 (“the premises”):
(a) For any activity occurring within the premises which causes the noise level at the nearest residential structure to exceed 5dB(A) above background noise level between the hours of 8.00 pm and 8.00 am, and 10dB(A) above the background noise level between the hours of 8.00 am and 8.00 pm;

(b) For any activity occurring within the premises, including but not limited to church services, choir activities, funeral services and vigils, fund raising activities, special services, weddings, feasts and birthday celebrations, not held wholly within the premises;

(c) For funerals and associated vigils outside the hours of 8.00 am to 8.00 pm;

(d) Subject to 1(e) below for fund raising activities, special services, weddings, feasts or birthday celebrations, except on six Saturdays per calendar year between the hours of 8.00 am and 8.00 pm;

(e) For Church services and/or choir activities, other than those specified in order 1(d) except:
(i) during the first week of January and the last week of June each year from Sunday to Friday inclusive between the hours of 8.00 am and 8.00 pm;
(ii) during the rest of the year on a maximum of four days per week between the hours of 8.00 am and 8.00 pm, subject to (iii) below;
(iii) during the New Years Eve service. The New Years Eve service shall end no later than 1.30 am on New Years day and the premises shall be vacated by all the attendees by no later than 2.00 am on New Years day.
(f) As a community and/or social centre except between the hours of 8.00 am and 8.00 pm apart from one week per year in May or June when the President of the Church of Tonga comes to Australia when the hours will be between 8.00 am and 10.00 pm for three days of that one week and 8.00 am and 12.00 am for four days of that one week and limited to 40 people in attendance.

Order 2: No alcohol is to be consumed on the premises at any time.
Order 3: The respondent church shall take all reasonable steps to ensure that persons attending the premises do not consume alcohol in the vicinity of the premises.
Order 4: The respondents shall authorise and require no fewer than four persons to be wardens of the Free Church of Tonga (the “wardens”) at least one of whom shall attend the premises and undertake the duties set out below whenever the premises are attended by any persons:
(a) participating in or observing a religious service of the Free Church of Tonga; and/or
(b) participating in or observing a performance or rehearsal of any choir or other musical group; and/or
(c) participating in or observing a social function; and/or
(d) being more than 15 in number who are participating in or observing any other activity.
Order 5: The respondents shall direct the wardens to:
(a) use their best endeavours to prevent or halt any activity or behaviour of any person at the premises which would constitute a breach of these orders; and
(b) use their best endeavours to prevent or halt any activity or behaviour of any person arriving at, attending or leaving the premises, which would unreasonably interfere with the amenity of any of the residents of the area within the vicinity of the premises, including but not limited to parking illegally, making loud noise of any kind and dropping rubbish;
(c) ensure that persons attending the premises for any purpose, leave the premises and the vicinity of the premises within 20 minutes of the conclusion of any activity at the premises;
(d) wear an identifying marker at all times while acting as a warden, so as to clearly identify them as wardens.


6. The form of the consent order No. 1 made on 2 December 1996 is prolix and the language used is convoluted to an extent that in my opinion it inevitably leads to confusion.

7. The broad allegations made in respect of nominated dates in the Statement of Charge pursuant to the Supreme Court Rules (the SC Rules) Pt 55 r 7 are as follows:-

(i) the respondents:
(A) used the premises for the purpose for an activity which caused noise levels in excess of Acceptable Day Time Noise and Acceptable Night Time Noise;
(B) held an activity which did not occur wholly within the premises;
(C) used the premises as a community and/or social centre outside the hours of 8.00 am and 8.00 pm; and
(D) failed to require or direct a warden fulfil the duties
(ii) alcohol was consumed on the premises.


8. The complaint in (ii) is raised on only two occasions, namely 20 September 1997 and 7 February 1999.

9. On 12 October 1997 the complaint is limited to (i)(A) above.

10. On 3 March 1999 the complaint is limited to (i)(D) above in respect of Acceptable Day Time Noise.

11. Otherwise all of the allegations, or a combination of them, are raised in each case.

12. The logical reading of Order 1 is that the constraints (a) to (f) relate only to the use of the premises for the purpose of a place of public worship. It says nothing about the use of the premises for any other purpose. It is essential therefore that the applicant prove that where a breach of Order 1 is alleged that the premises were being used for the purpose of a place of public worship at the relevant time on each of the days when the applicant claims the breach occurred. There are other difficulties with the construction of orders which will be dealt with later in the judgment.

13. Orders 2, 3, 4 and 5 are in terms which apply generally to all activities and attendances whenever they occur.

14. Relevant to the undertaking given to the Court on 2 December 1996, a form of development application was lodged with the council on 24 December 1996. The application described the proposed development as follows:-

Religious, Charitable, Educational and Community based activities under the banner of “(the) Free Church of Tonga” from the Church, Church Hall and surrounding grounds of the Property, being a continuing use as currently regulated by existing Court Consent Order.

15. The description of the proposed development is to be compared with the terms of the undertaking to seek consent to the intensification of the use of the premises:-


(a) to conduct activities, including but not limited to, Church services, choir activities (including practice), funeral services and vigils, fund raising activities, special services, weddings, feasts and birthday celebrations where more than 50 people are to attend the premises.

(b) to conduct activities within the premises and any building erected thereon for the purpose of community and/or social centres.


16. The complaint by the applicant is that the respondents have not provided further information requested by the council to allow it to complete the assessment.

17. At the date of commencement of the proceedings, the individuals named as the respondents were the trustees pursuant to a Deed of Appointment dated 29 January 1987.

18. By a further deed executed on 6 February 1997, the Free Church of Tonga, a company limited by guarantee and incorporated on 7 January 1997, was appointed as trustee.

19. The corporate trustee was not named as a respondent in the original application. It was not a party when the consent orders were made on 2 December 1996. Nor was it a party when the Notice of Motion seeking orders for contempt of the Court’s orders was filed. It was joined as second respondent on the last day of the hearing pursuant to consent orders made in response to a Notice of Motion filed in Court by the applicant during final submissions.

The Facts

20. The Court received the following evidence in respect of events that occurred on the dates shown.

25 December 1996

21. According to the respondents’ witnesses, a church service was held at the premises between the hours of 11.00 am and 1.00 pm. Wardens were present to carry out their duties. Telua Selaki, who told the Court he is one of the Church wardens appointed by the Church since December 1996 and that he wears a security uniform which identifies him, says that he was present on duty and that no other activities were conducted afterwards.

22. The evidence of Mr Miller, a neighbour, is that at about 9.30 pm a crowd estimated to be in excess of 100 people arrived at the hall and sat on the ground on the nature strip on both sides of Lorking Street and on the church side of Cressy Street. In his opinion members were parked illegally, including on the footpath and on the nature strip.

23. At 11.00 pm two trucks arrived and divan base mattresses and bedding, including four poster beds and a number of brass beds, were taken into the hall.

24. Noise continued throughout the night. There is no evidence of formal sound level measurements being taken.

25. Vehicles remained parked in the area overnight. People were observed on the premises when Mr Miller arose from bed the following morning.

26 December 1996

26. Between 8.00 am and 9.00 am two trucks arrived at the hall and more beds, plus some stereo equipment, were delivered. Audio equipment was set up and played amplified “rap” music.

27. Following complaint to the police by Mr Miller, he observed that by 11.00 am the people dispersed with their bedding equipment and sound equipment under police direction.

28. The respondent witnesses confirm that there was a church activity of the Women’s Day from 9.00 am to 10.00 am. They assert that wardens were present during that time. Telua Selaki confirmed he was present doing his duties.

31 December 1996

29. According to Mr Miller, 400 - 500 people arrived at the church at 6.00 pm for what appeared to be a New Year’s celebration. They remained in the hall all night and did not leave until 11.00 am on 1 January. The level of noise disturbed Mr Miller’s sleep.

30. Angelina Crismale lives next door to the Church hall in Lorking Street. She gave evidence that the New Years Eve service did not conclude at 1.30 am and the premises were not vacated by 2.00 am. Rather, people attending the premises remained throughout the entire night and did not leave until approximately 11.00 am on New Years Day.

31. The evidence on behalf of the respondents is that there was a New Year’s Eve service scheduled from 10.00 pm or 11.00 pm to 1.00 am followed by New Years greetings by church members. It is claimed that the premises were vacated by 2.00 am and wardens were present. Mr Selaki said that he and the wardens made sure that members left before 2.00 am.

1 January 1997
32. Notwithstanding the unchallenged evidence of Mr Miller and Angelina Crismale, who were not cross examined, the respondents’ witnesses assert that the premises were used on this day for New Years greetings when church members from other branches came to greet the Head Minister and other ministers between 9.00 and 11.00 am. Wardens were present. Again, Mr Selaki confirms that he and the other wardens were present doing their duties.

19 April 1997

33. Mr Miller was woken shortly before 4.00 am by the sound of motor vehicles. The lights of the church hall were on and the doors were open. The sound of raised voices and raucous laughter emanated from the hall.

34. Shortly after 5.35 am the following was observed by Mr Miller:-

(a) an adult male lying on a straw mat at the south end of the hall, apparently sleeping;
(b) approximately 5 people sitting on the kerb on the nature strip on both sides of Cressy Street;
(c) the lights were on;
(d) the rear door and side gates of the hall open; and
(e) three or four cars illegally parked outside the premises.


35. At 6.16 am more people arrived. At approximately 7.20 pm 10 people were lying on the sidewalk.

36. On this day the church held its annual regional conference, known as Fakavahefon, at the hall. The minister had a meeting until 4.00 pm after a service commencing at 10.00 am. The Court was told by the respondents’ witnesses that wardens were on duty.

31 August 1997
37. Mr Miller says 300 people gathered in the hall before 6.30 am. He described what he observed as follows:-

(a) people sitting around on mats and around the streets;
(b) children playing in the streets unsupervised making a great deal of noise;
(c) a woman who appeared to be carrying out hairdressing business from the back of a van with her clients sitting on the street;
(d) a number of vehicles illegally parked all along Cressy Street and Lorking Street; and
(e) approximately 50 people sitting on the grass behind the cars.


38. The people did not leave until after 8.00 pm. No wardens were observed by Mr Miller.

39. According to the respondents’ witnesses the only activity on that day was the last Sunday of the month service and choir singing from 11.00 am to 2.00 pm.

40. They each said wardens were present and attending to their duties.

20 September 1997

41. Mr Miller’s evidence is that 200 - 300 people gathered in the hall. A tarpaulin was hung from the side of the building to a large truck parked on the sidewalk. People were served alcohol from the back of a trailer and a number of people walked around the premises drinking beer. Beer bottles and bottle tops were left lying around the premises.

42. The respondents’ witnesses identified this day as the September Women’s Day church service. The church service was held between 11.00 am and 12.00 pm followed by a feast to 4.00 pm. There is reference to a meeting after the service.

43. They claim that the wardens were present.

12 October 1997

44. The only allegation in the charge in respect of this date is that the respondents failed to require or direct a warden to fulfil the duties. There is no evidence to support the allegation.

45. On the other hand, the evidence from the respondents’ witnesses is that the wardens were present outside the church premises doing their duties.

31 December 1997

46. According to Mr Miller approximately 400 people gathered in the church between 6.00 pm and 6.30 pm. People were laughing and shouting the next morning at 6.00 am. At approximately 6.30 am people arrived with musical instruments. Mr Miller complained to a council officer. The police were called and the people left the premises at approximately 10.45 am.

47. George Callas, a neighbour living at 41 Cressy Street, said in his affidavit that a large number of persons attended the hall for New Year celebrations and that he was woken at approximately 7.10 am by the sound of a brass band.

48. No wardens were observed by Mr Miller or Mr Callas, although the respondents’ witnesses asserted they were present and attending to their duties.

49. The respondents’ witnesses claim that on Wednesday 31 December 1997 there was a New Years Eve service which started at 10.00 pm and concluded at 1.00 am on 1 January. They each say that the wardens made sure all persons left the premises by 2.00 am.

1 January 1999

50. Again Mr Miller says he observed approximately 400 people gather in the church at about 6.00 - 6.30 pm on 31 December 1998. They thereafter remained at the premises until 11.00 am on 1 January 1999 and continued to make noise all night.

51. Mr Callas told the Court there was a significant amount of noise from people shouting and yelling and singing throughout the night. The noise continued until 11.00 am the next day.

52. No wardens were observed by Mr Miller or Mr Callas.

53. According to the respondents’ witnesses, the New Years Greetings took place from 9.00 am to 11.00 am when branch members came to greet the Head Minister and other ministers. They claim wardens were present.

7 February 1999

54. Mr Miller claims 300 people attended the premises. At approximately 1.35 pm he telephoned the police to complain about the disturbance caused by the noise. He further stated “(o)n that day, I observed that alcohol being consumed on and off the premises” . He exhibited a photograph which shows what appears to be an empty bottle and other rubbish “on the beauty strip” outside his property in Lorking Street. Mr Miller described the “bottles” as Victoria Bitter and Carlton Cold bottles.

55. The other rubbish in the street comprised discarded paper plates, a soiled nappy and empty baby food jars. Mr Miller also observed three or four dozen empty beer bottles on the ground on the opposite side of the street outside the church.

56. The respondents’ witnesses nominated this date for the First Sunday of the Month service between 11.00 am and 1.00 pm. They asserted no alcohol was consumed on the premises and that wardens were present doing their duties.

12 February 1999

57. Mr Miller says there were approximately 30 - 40 people causing what he described as “a significant commotion” at the church all day. He also observed 15 - 20 children running around the premises on the beauty strips and on the road.

58. Mr Callas first became aware of the gathering at about 2.00 pm. He saw at least 50 people “outside the hall” . Mr Callas says “there was a great deal of noise caused by people stomping their feet and yelling and yahooing” … “it sounded like a pageant was being conducted” . A microphone was used to amplify sound. The noise continued for between one and one and a half hours.

59. The respondents’ witnesses say that the only service on this date was the church evening service from 5.00 pm to 6.00 pm. There were no other activities afterwards.

3 March 1999
60. The applicant’s evidence in regard to any event on this day was not pressed. The respondents’ witnesses claim that there was a “normal service” from 5.00 pm to 6.00 pm.

6 - 7 March 1999

61. The respondents’ witnesses say nothing was conducted on the premises at this date.

62. However, Angelina Crismale, who lives at 1 Lorking Street, stated in her affidavit that on the weekend of 6 and 7 March 1999 the behaviour of the people congregating in the church was “particularly poor” .

63. At 9.00 am on 6 March she observed a large number of people arrive, 20 of whom stood on the nature strip outside the hall and in front of her home. She described a significant level of noise all day with people singing in the hall and shouting and yelling in the street. Ms Crismale says the noise continued until approximately 6.00 pm.

64. According to Ms Crismale, the events were repeated the next day. She observed approximately 10 males, ranging from very young boys to young men, sitting on her front fence. She says they were “obviously intoxicated” . She observed the men drinking beer which she believed was Victoria Bitter and Carlton Cold. The hose at the front of her home was disturbed and broken during her absence.

65. She also said a number of men arrived in a van which they parked against the wall of the hall. She observed the men “carry several small pigs out of the van and into the hall” . Bottle tops were left outside the hall and in front of her house.

66. Another neighbour, Mr Bush, complained that on 6 March six or seven uncontrolled children ran around in his front yard and on the verandah of his house. One woman sat on the top step of the front verandah while she breastfed a baby.

13 March 1999

67. Mr Miller observed between 200 and 300 people in the church hall making a considerable amount of noise from 10.00 am. At approximately 2.30 pm he observed four double bed bases and 10 double straw mats set out on the beauty strip outside the church hall. He also observed a soiled nappy filled with faeces jammed in the cleft of a bottle brush tree in the street opposite the hall. No wardens were seen by Mr Miller.

68. The evidence on behalf of the respondents is that there was a church service from 11.00 am to 12.00 pm followed by a meeting in the church which finished by 2.00 pm. Wardens were said to be present.

Week Preceding 15 March 1999

69. Billy Djurdjevic, who lives at 37 Cressy Street, says she was woken by noise emanating from the premises at approximately 4.00 am on four consecutive nights. She could hear men shouting and laughing. There were four men “sitting in a circle on the ground in the garage which is next to the hall. The door to the garage was open and the lights were on” .

70. On the fourth night she had a conversation with a man standing in the garage who apologised for the noise.

10 - 11 April 1999

71. Donald Maxwell Weston lives at 43 Cressy Street.

72. On 10 April he was woken at 7.30 am by the sound of people arriving at the premises. There was the sound of car doors slamming and children yelling and screaming. He observed five combie vans, one 4WD vehicle, one minibus and eight sedans outside the church.

73. At 8.25 pm two 4WD vehicles, two combie vans, two sedans and one minibus arrived.

74. Apart from two sedans which left the previous evening, all the vehicles remained outside the hall at 7.30 am the next day.

75. The respondents’ witnesses explain that 10 April is Fakavahefonua. There was a service from 10.00 am followed by a church ministers’ meeting until 4.00 pm. However, on 11 April 1999 there was no activity at the church because they say the service was held at the Addison Centre in Marrickville.

21 April 1999

76. On 21 April 1999 the respondents’ witnesses say there was a “normal Wednesday evening service” .

77. Joanne Brown is an Environmental Health Officer employed by the applicant council.

78. At about 5.30 pm she measured the sound background level at 1 Lorking Street at 35.5 dB. A few minutes later the sound level was measured at 62 dB(A). At the later time she states there was a clearly audible sound of male and female voices singing in the premises.

27 April 1999

79. The allegation on this day is that the respondents held an activity which did not occur wholly within the premises and that they failed to require or direct a warden to fulfil the duties.

80. On 26 April Mr Bush observed two vehicles carrying two or three adults and six or seven children of Tongan appearance outside his home at about 12.30 pm. They sat on the grass on the nature strip talking and eating. He afterwards observed that a soiled nappy had been left in his front yard and that rubbish had been left on the nature strip.

81. The only evidence in respect of 27 April is that Mr Bush inspected the nappy and observed that “it was covered in flies” .

82. There is no evidence of activity at the church premises on 27 April 1999.

The credibility of witnesses

83. The respondents did not require any of the applicant’s witnesses for cross examination. The affidavits were read without any objection except in one minor respect.

84. Having regard to the way the case was conducted it is proper that the Court accept the evidence of the applicant’s witnesses where any proposition to the contrary was not put to them. Nevertheless the relevance and effect of that evidence must be considered and applied to determine whether the allegations made in the charge have been made out.

85. The witnesses relied upon by the respondents were Lopiseni Tui, the Church Secretary, Sione Aho, the Head Minister and Telua Sulaki, an ordained minister of the Free Church of Tonga. They were cross examined. Although they dealt with the scheduled events for each date in turn in response to the charge, it became clear during the course of cross examination that the respondents’ witnesses had not turned their mind specifically to the detail of the activities associated with the alleged events which took place on the particular days. Their evidence in chief was confined to confirming that formal programmes took place on particular days and that on each of those occasions wardens were present and doing their duties. The latter evidence was based on the general assertion that on every occasion when a formal service or other activity took place, the wardens were present and carried out their duties. Notwithstanding that his evidence was also in the general terms described above, Telua Sulaki was able to give first hand evidence as one of the church wardens.

86. There is no evidence to support the charge that the wardens were not required or directed to fulfil their duties. There is evidence by the applicant’s witnesses to the effect that they were not observed as being present from time to time. However, the claim is that the respondent failed to comply with consent orders 4 and 5 which are set out above in full. The applicant bears the onus of proof to show beyond reasonable doubt that the respondents failed to authorise and require the specified number of wardens in accordance with Order 4 and to give the requisite directions pursuant to the order. During cross examination the Court heard evidence from two witnesses called by the respondents that members of the church who are employed by a security firm, and others, have acted as wardens throughout the relevant period.

The respondents

87. The observation that alcohol was used on the premises was met by the retort that no alcohol was allowed.

88. In final submissions Mr Preston, counsel appearing for the respondents, relied on the documents which proved the appointment of the new trustee. The applicant thereupon presented a Notice of Motion seeking an order that leave be granted to join the Free Church of Tonga (ACN 076 973 923) as the second respondent.

89. Mr Preston was granted a short adjournment in order to obtain instructions to appear on behalf of the corporate body. He then informed the Court that his corporate client consented to the order joining it as a party to the proceedings as second respondent. The order was made by consent on 29 June 1999.

90. No separate or further charge was prepared or served on the second respondent. Mr Preston indicated that no issue would be raised in this regard and that his client was prepared to deal with the matter on the basis of the evidence already given.

The Defences

91. The respondents raise the following defences:-


i) The first respondents ceased to hold office from 6 February 1997.

ii) The orders made on 2 December 1996 cannot be construed so as to apply to the second respondent.

iii) The terms of the orders made on 2 December 1996 are incorrectly set out in the charge with the consequence that the charge is not specifically set out as required by Pt 55 r 7 of the SC Rules.

iv) The orders require the respondents to give the specified direction to the wardens without creating any responsibility for the failure of the wardens to perform their duties.

v) The orders restrain the respondents from using the premises for the purpose of a place of public worship. Accordingly the applicant is required to establish that on each of the relevant days, the named respondents did use the premises for a place of public worship. From 6 February 1997 the first named respondents could not and did not use the premises for a place of public worship, or at all. The use for the purpose of public worship is not proved at any relevant time.

vi) The facts established by the evidence do not amount to a breach of the orders made by consent on 9 December 1996.

The Effect of the Appointment of New Trustees and Joinder of the Second Respondent

92. A primary purpose in contempt proceedings is to enforce the injunction for the benefit of the applicant. Another purpose is to protect the effective administration of justice by demonstrating that the Court’s orders will be enforced ( Australasian Meat Industry Employees’ Union and Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107).

93. It is appropriate that disobedience of the Court’s orders should be punished as if they are quasi-criminal in character, the underlying purpose being to discipline the respondents. Where there is a deliberate commission or omission in breach of the Court’s orders, that will constitute wilful disobedience justifying the imposition of a penalty unless it be casual, accidental or unintentional.

94. It has long been established that the Court will insist the procedure for committal is strictly observed.

95. In the present case, the second respondent was not a party to the proceedings when the consent orders were made. The second respondent did not exist as a legal entity at the time and, there is no evidence that shows it had any responsibility in relation to activities on the land until it was appointed as the new trustee. Furthermore, the Statement of Charge is not directed to the new trustee and it was not served on the second respondent pursuant to Pt 55 r 7. Critically it was not a party to the Notice of Motion seeking orders that the first respondents be found guilty of contempt for failing to comply with the consent orders and for breaching the undertaking given on 2 December 1996.

96. It was not until 26 June 1999 that leave was granted to join the second respondent as a party to the proceedings. That order was made by consent.

97. Pursuant to Pt 8 r 11(3) of the SC Rules, the date of commencement of the proceedings so far as they concern the second respondent is the date on which the amendment was made adding it as a respondent.

98. No attempt was made to invoke the provisions of Pt 8 r 10(2) and no consequential orders were made whereby the second respondent is to be regarded as a party to the proceedings at any earlier date.

99. It would be wrong in principle and contrary to the evidence to find the second respondent guilty of contempt for failing to comply with orders made in proceedings to which, at the time of making the orders, it was not a party. Furthermore, the consent orders are not framed to extend the obligation for compliance beyond the named first respondents. In the circumstances, there can be no finding of guilt against the second respondent.

100. The legal effect of the appointment of new trustees is that the existing trustees have no further responsibility in relation to the administration of the trust. Thereafter, not only are they discharged but in any relevant respect they are incapacitated from interfering with the trust property. As a matter of logic, it follows therefore that the first respondents, as trustees, could not have used the premises the subject of the trust for any purpose after 6 February 1997. There is no direct evidence that the first respondents or any of them used the premises for the purposes of a place of worship contrary to the orders made on 2 December 1996 in their capacity as trustees or otherwise. No submission was made to the contrary on behalf of the applicant.

101. The three persons who gave evidence on behalf of the respondents acknowledge that they attended church services held in the premises on a number of the dates particularised in the charge. However, none of these persons were respondents at the time the consent orders were made on 2 December 1996 and no proceedings for contempt have been taken against them as individuals.

102. The consequence of the above finding is that the charge can only be maintained against the first respondents in respect of the period between 2 December 1996 and 6 February 1997, namely 25 December 1996, 26 December 1996, 31 December 1996 and 1 January 1997.

The effect of the orders

103. I agree with Mr Preston’s primary submission that in so far as a breach of Order 1 is alleged, the applicant is required to prove that, at the relevant time, the premises were being used for the purpose of a place of public worship.

104. Order 1(a) applies technical criteria which demands the use of relevantly calibrated and professionally operated measuring instruments in order to determine a background noise level and the extent of any exceedence between the specified hours. It is not sufficient proof of a breach of Order 1(a) to demonstrate that there was audible noise detectable at the nearest residential structure.

105. Order 1(b) envisages that use for the purpose of a place of public worship includes activities beyond actual church services. The premises are defined as the land being Lot 1 DPS20091 rather than the building erected thereon. Order 1(b) does not require therefore that the activity in question be conducted wholly within the building. It does however require that the activity itself be held wholly within the premises. By way of example, this raises a distinction between a party or fete held on the land and a party or fete which is partly held within the boundaries of the land and partly on the adjoining street. Any formal part of the function being hosted by the church or being conducted under its auspices must be held wholly within the premises. It would be a nonsense to expect that an activity attracting a large number of persons to the premises would not have the peripheral consequence of people meeting, greeting, gathering and having conversations on the street itself, either while entering or leaving the premises or during a break in the activity. The fact that people are observed on the street while the activity is occurring within the premises cannot be sufficient to support a claim of breach of the order.

106. The restrictions imposed by Order 1(c) are reasonably clear and do not require further examination for present purposes.

107. Order 1(d) is in terms referring to the particular activities, services, feasts or celebrations mentioned in the order. There is no explanation of the term “special services” . The best construction the Court can place on Order 1(d) is that the premises can be used for the purpose of a place of public worship involving fund raising activities, special services, weddings, feasts or birthday celebrations on six Saturdays per calendar year during the specified hours. Order 1(d) is expressed to be subject to Order 1(e).

108. Order 1(e) prohibits church services and/or choir activities other than those specified in Order 1(d). Presumably it thereby excludes the six Saturdays nominated in the earlier order from consideration under (e). It then goes on to except services and choir activities during the first week of January and the last week of June from Sunday to Friday and the New Years Eve service. Order 1(e)(ii) excepts church services and activities on a maximum of four days per week between the hours of 8.00 am and 8.00 pm subject to the extended hours allowed for the New Years Eve service in (iii). Order 1(e) and (d) are confusing and difficult to read. Order 1(d), when read together with the rest of the order can be taken to mean that the respondent is either restrained from using the premises for the purpose of a place of public worship, for fund raising activities, special services, weddings, feasts, or birthday celebrations between the hours nominated other than on six Saturdays per calendar year; or that it is permitted to hold those same activities on six Saturdays between the nominated hours. In other words, only six Saturdays can be utilised, or alternatively six Saturdays are to be left free of activity. The same difficulty, setting aside the interrelationship between (d) and (e), is faced when Order 1(e)(ii) is closely examined. The preferred construction is that the orders are intended to permit the nominated activities on the specified days only during the particular hours referred to.

109. It is impossible to say that the meaning of Order 1 is clear. Furthermore, there is no explanation of what is to be regarded as “a community and/or social centre” .

110. There is no difficulty in construing Order 2 as a general prohibition against the consumption of alcohol on the premises.

111. Order 3 requires that the “Respondent Church” , whatever that means, take all reasonable steps to ensure that alcohol is not consumed in the vicinity of the premises.

112. Order 4 is limited to the issue of the authority to the wardens and requiring them to perform the listed duties.

113. Order 5 is similarly limited to a requirement that the respondents give the specified directions.

The outstanding charges
Noise

114. The charge in respect of 25 December 1996 alleges noise in excess of Acceptable Night Time Noise, whereas the charges in respect of 26 December 1996 and 1 January 1997 refer to Acceptable Day Time Noise. The charge on 31 December 1996 includes both Acceptable Day Time Noise and Acceptable Night Time Noise.

115. No acoustical measurements were taken on any of these dates. Even if the reference to Acceptable Noise can be read back to the terms of Order 1(a), the charges have not been proved and will be dismissed.

Activity not wholly within the premises

116. The charge is made for each of the dates 25 December 1996, 26 December 1996, 31 December 1996 and 1 January 1997.

117. Although Mr Miller observed persons sitting on the nature strip on 25 December, there is no evidence to support the allegation that any activity was held otherwise than within the premises. People sitting on the ground is not, without something further, proof beyond reasonable doubt that activity occurring within the premises, whatever that was, is not being held wholly within the premises. There is no evidence of activity outside the premises on 26 December.

118. Mr Miller’s evidence in regard to 31 December is that approximately 400 - 500 people arrived at the Church at 6.00 pm and “(t)hey remained in the Hall and Church all night” .

119. The charges that an activity was not held wholly within the premises in relation to the above dates have not been made out to the requisite standard and will be dismissed.

Use as community and/or social centre

120. The use of the word “centre” denotes something more than a use for an isolated occasion or for spasmodic unrelated activities. There is no issue that the premises have been set aside for the particular activity of church services. There is no evidence to confirm that it has been set aside specifically for use as a centre for any other purpose.

121. On 25 December Mr Miller said it appeared to him at the time that the hall was intended to be used as a dormitory. During the morning on 26 December he observed two more trucks arrive “with more beds and stereo equipment” .

122. He described the activity on 31 December as “what appeared to be for a New Years celebration” .

123. Order 1(a) to (e) is specifically directed to individual activities, whereas Order 1(f) is framed to recognise a distinct use on a continuous basis, albeit as part of the use for the purpose of a place of public worship. On the basis of the evidence the events of 25/26 December 1996 and 31 December 1996/1 January 1997 must be regarded as “one off” events. They may well have offended the Orders made on 9 December 1996 in some other way, but it has not been established beyond reasonable doubt that the premises were being used as a community and/or social centre as alleged in the charges.

Failure to require or direct a warden to fulfil the duties
124. The bold assertion by Mr Miller and other residents that they have never observed a person marked as a warden or that no person acting as a warden was observed on any particular occasion does not establish that the respondents did not comply with Orders 4 and 5. Furthermore, the charge is so vague and uncertain that it cannot be sustained. The Court is not satisfied that the charge relevantly specifies the contempt of which the contemnors are alleged to be guilty pursuant to Pt 55 r 7.

The later charges

125. It is not, in the light of the Court’s earlier findings, necessary to go further than 1 January 1997. Nevertheless, it is consistent with the failure of the applicant to prove the charges up to that date in accordance with the relevant standard that many of the charges made in respect of subsequent dates have not been proved beyond reasonable doubt. There are possible exceptions for the time when there is direct evidence of the consumption of alcohol and on 21 April 1999 in relation to noise.

126. For the reasons already explained, the respondents cannot be held liable for any contempt alleged to have occurred after the retirement of the original trustees and the appointment of a new trustee. It follows that the charges between 19 April 1997 and 27 April will be dismissed.

Breach of undertaking

127. Without making a formal finding to that effect, but accepting for the present purpose, notwithstanding the lack of specificity, that the undertaking was given to the Court, the respondents did lodge a development application which relevantly sought consent for activities in accordance with the undertaking noted by the Court on 2 December 1996.

128. The council appears to have been content to leave the matter in abeyance by failing to determine that application. It took no action during the whole of 1997 and 1998, right up to the commencement of the contempt proceedings by Notice of Motion in April this year.

129. The evidence suggests that the council commenced the present proceedings in response to a petition from the residents who asserted that unless the council took some action in the Court to restrain the activities, they would do so independently.

130. Even if I was satisfied that there was a breach of the undertaking which left the respondents in contempt of the Court, which I am not, I would not have been prepared to proceed to make an order for punishment in that respect.

Orders

131. It is arguable that the Court would not be prepared to find the respondents in contempt of Order 1 having regard to the uncertainty and lack of clarity in the terms of that order. Support for this conclusion is to be found in the judgments of the majority in Australian Consolidated Press Ltd v Morgan and Anor (1965) 112 CLR 483 at 506 and 515 - 516.

132. Having regard to the whole of the circumstances and the evidence, the applicant has not established the contempt alleged in the charges beyond reasonable doubt.

133. Costs will be reserved to allow the parties to make submissions in that respect.

134. The formal orders of the Court are:


1. The respondents are found not guilty of contempt of this Court as alleged in the Statement of Charge.

2. The Notice of Motion filed 30 April 1999 is dismissed.

3. Costs reserved.

4. The exhibits may be returned.