Director National Parks & Wildlife v Klaus Remme [1992] Nswlec 57 (23 July 1992) - [1992] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION: DIRECTOR NATIONAL PARKS & WILDLIFE v. KLAUS REMME [1992] NSWLEC 57 (23 July 1992) [1992] NSWLEC 1

PARTIES: DIRECTOR NATIONAL PARKS & WILDLIFE v. KLAUS REMME [1992] NSWLEC 57 (23 July 1992)

FILE NUMBER(S): 40156 of 1987

CORAM: Stein J

KEY ISSUES: :-

LEGISLATION CITED:

CASES CITED: Drummoyne Municipal Council v. Lewis ((1974) 1 NSWLR 655) ;
Isaacs v. Robertson [1985] 1 AC 97 (P.C.);
AMIEU v. Mudginberri Station ((1986) 161 CLR 98) ;
Marrickville Municipal Council v. Krouklidis ((1989) 67 LGRA 176);
also N.S.W. Egg Corporation v. Peek ((1988) 10 NSWLR 72 at 82);
McNair v. Hinch ([1985] VR 309 at 314)

DATES OF HEARING:

DATE OF JUDGMENT:
07/23/1992

LEGAL REPRESENTATIVES:
APPLICANT
RESPONDENT

JUDGMENT:

HIS HONOUR: By Notice of Motion dated 15 May 1992 the Director of the National Parks and Wildlife applies for orders that Klaus Remme, the respondent, be held in contempt of orders of the Court made on 7 April 1988. He also asks that the title to the proceedings be amended to delete the name of the applicant, John Frederick Whitehouse, who is no longer the Director. There is evidence that William John Gillooly was appointed Director in January 1990 and accordingly I grant the amendment to the name of the applicant.

The Statement of Charge alleges that Mr. Remme committed 8 breaches of Orders 5 and 7 on various dates between 25 February 1992 and 29 April 1992. I annex my reasons for Judgment of 7 April 1988 which include the orders then made, see (1988) 64 LGRA 375.

A preliminary matter arises. The Director, by his counsel Mr. Buchanan, concedes that the prosecutor has not complied with the requirements of Part 42 Rule 8(1) and (3) of the Supreme Court Rules, which are applicable to the subject Motion. A minute of the Judgment has not been served on the respondent endorsed with a notice that the person served is liable to imprisonment or sequestration of property if the orders are not obeyed.

Rule 8 also contains the following sub-rules:

" (6) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment -

(a) by being present when the judgment is directed to be entered or when the order is made; or

(b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise,

the judgment may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with the rule.

(7) The Court may dispense with service under this rule."

In Drummoyne Municipal Council v. Lewis ((1974) 1 NSWLR 655) Holland J held that the dispensing power should be exercised sparingly. There need be special circumstances to justify non-compliance with the requirements of the rules.

In the subject case it is abundantly clear that the respondent was present in…

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.

Continue reading Director National Parks & Wildlife v Klaus Remme [1992] Nswl...

Details

AGLC: Director National Parks and Wildlife v Klaus Remme [1992] NSWLEC 57 (23 July 1992) [1992] NSWLEC 1
Case: [1992] NSWLEC 57
Decision Date: 07/23/1992

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales is a contempt proceeding brought by the Director of National Parks and Wildlife against Klaus Remme. The Director seeks to hold Remme in contempt of specific court orders made on April 7, 1988, which prohibited Remme from constructing trails, damaging vegetation, operating heavy machinery, and driving vehicles within certain areas of the Blue Mountains National Park. The proceedings stem from Remme's alleged continued construction of a road and other activities within the park, in defiance of these orders. The court was required to determine whether Remme had indeed wilfully breached the orders and, if so, what the appropriate sanctions should be.

The court first addressed procedural issues regarding the service of the judgment and orders on Remme. Despite the Director's counsel conceding that the formal service requirements had not been met, the court found that Remme had been sufficiently aware of the orders and their implications due to his presence in court, receipt of the judgment, and multiple warnings from authorities. The court held that the lack of formal service did not preclude the contempt proceedings. The court also noted that an existing appeal against the 1988 orders did not affect the contempt motion.

The court then examined the evidence of Remme's activities, which showed that he had continued to construct and use a road within the park, despite the clear orders prohibiting such actions. Surveyors' evidence established that Remme's road deviated significantly from any permitted public roads and lay entirely within the park. Park rangers' observations and photographs documented the extent of Remme's construction and the damage caused. Remme's defence that he had followed an existing public road was found to be unfounded.

The court concluded that Remme's actions constituted wilful and deliberate breaches of the orders, proven beyond reasonable doubt. The evidence demonstrated that Remme had knowingly and intentionally violated the court's orders, with his actions being neither casual nor accidental. The court found Remme to be in contempt of court on all counts detailed in the Statement of Charge. The matter now proceeds to determine the appropriate punishment for these breaches.

In summary, the court found Remme guilty of contempt for repeatedly violating specific court orders prohibiting certain activities within the Blue Mountains National Park. The breaches were found to be deliberate and in open defiance of the court's authority. The matter will now move to determining the appropriate sanctions for these contemptuous actions.

Orders