Cohen v Double Bay Bowling Club

In Cohen v Double Bay Bowling Club, the plaintiffs, Mr Cohen and Mr Coutts, brought contempt proceedings against the first defendant, the Double Bay Bowling Club, and the second defendant, Mr Laing, who is a director of the Club. The dispute arose from an earlier interlocutory injunction that prohibited the Club and Mr Laing from carrying out any works in the nature of excavation within the vicinity of the plaintiffs’ property. The plaintiffs alleged that the defendants had breached the injunction by engaging in activities that constituted excavation, in violation of the undertaking given to the Court. The case was heard in the Supreme Court of New South Wales, Equity Division.
The primary legal issues that the Court had to decide included the interpretation of the phrase “works in the nature of excavation” in the context of the undertaking, whether the statement of charges against the first defendant was properly particularised, and whether there was sufficient evidence to establish that the first defendant had arranged for the works to be carried out in breach of the undertaking. Additionally, the Court needed to determine if Mr Laing, as a director of the Club, could be held liable for the works carried out by the Club in breach of the undertaking. Another issue was whether contumacy is a necessary element to find someone guilty of criminal contempt.
The Court found that the phrase “works in the nature of excavation” was ambiguous and that the digging of previously excavated material did not constitute excavation as per the undertaking. The Court also held that the statement of charges against the first defendant was not properly particularised, and there was insufficient evidence to establish that the first defendant had arranged for the works to be carried out in breach of the undertaking. Consequently, the Court dismissed the contempt proceedings against the first defendant. Regarding the second defendant, the Court found that there was evidence to support the allegation that he had carried out works in breach of the undertaking. However, the Court held that contumacy was not a necessary element to find someone guilty of criminal contempt, and Mr Laing was found guilty of criminal contempt. Finally, the Court declined to stay the proceedings on the basis that there had been no abuse of process by the plaintiffs in bringing the contempt proceedings.