Gerondal v Eurobodalla Shire Council

[2011] NSWLEC 58

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gerondal v Eurobodalla Shire Council [2011] NSWLEC 58

Hearing dates:

15 February 2011

Decision date:

15 February 2011

Before:

Craig J

Decision:

1.Note that the appellant, Paul Gerondal, enters a plea of not guilty to each of the charges of contempt contained in the notice of motion filed on 17 December 2010;

2.Give leave to the parties to approach the Registrar forthwith in order to obtain a hearing date for a hearing of two days; and

3.Costs are reserved.

Catchwords:

PROCEDURE:- adjournment application - motion for contempt - self-represented litigant - need to seek legal advice

Legislation Cited:

Protection of the Environment Operations Act 1997

Category:

Principal judgment

Parties:

Paul Gerondal (Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

Self represented (Applicant)
Mr P W Larkin (Respondent)
N/A (Applicant)
Sparke Helmore (Respondent)

File Number(s):

60002 of 2009

EX TEMPORE Judgment

1. HIS HONOUR : Before me today is a notice of motion filed by the respondent Council in Class 6 proceedings. The motion seeks a number of orders that the appellant, Paul Gerondal, be found guilty of contempt of court. Mr Gerondal seeks an adjournment of the proceedings.

1. The foundation for the Council's motion are orders initially made by Pain J and later varied by Sheahan J, the latter extending time for compliance with the initial orders until 30 August 2010. The orders in question were made pursuant to s 245 of the Protection of the Environment Operations Act 1997 ( POEO Act ) whereby Mr Gerondal was required to remove a number of identified items from his land at Broulee.

1. The Council's motion was first made returnable before the Court on 14 January 2011. Mr Gerondal informs me that the notice of motion, together with a substantial number of affidavits filed in support of it, were received by him at some time between 10 and 12 January, that is, only two to four days prior to the initial return date.

1. When the matter was listed before the Court on 14 January, Mr Gerondal did not appear but apparently made some contact with the Registry explaining his non-attendance. Relevantly, on 27 January, the matter was listed before the Registrar who then listed the Council's notice of motion before a judge of the Court to enable a plea to be taken to the charges for contempt.

1. The matter came before me today. Mr Gerondal, who was unrepresented, was asked to indicate the plea that he intended to enter to the Council's charges for contempt. He stated that although he had received the documents on the dates in January to which I have earlier referred, his application for adjournment was made because he wished to seek legal advice as to the course that he should take. Quite why that legal advice had not been obtained prior to today was not adequately explained. However, given the seriousness or rather potential seriousness of the consequences for Mr Gerondal should the Council's case for contempt be established, it seems to me to be appropriate that an opportunity be afforded to him to seek advice and thereafter to chart his course accordingly.

1. Having indicated that he wished to seek legal advice, Mr Gerondal said that he "has no case to answer". With his agreement, I indicated that I would take that to mean a present intention to enter a plea of not guilty. However, Mr Gerondal was urged to seek the legal advice that he foreshadowed as soon as possible. I also indicated to him that in the event of receiving and accepting advice to the effect that a plea of guilty should be entered, it was important that an indication to that effect be given by him to the Council's solicitors as soon as possible.

1. However, as I have said, the case is presently taken to be one in which a plea of not guilty to the contempt charged is entered. For its part, the Council has indicated through its counsel, Mr Patrick Larkin, that the adjournment is not opposed. Apparently, the concern of the Council today was to ascertain the course that Mr Gerondal intended to take so that it could prepare for the hearing accordingly. There are a number of witnesses that it will need to call in order to prosecute the motion on a defended basis.

1. In the circumstances, I propose to accede to Mr Gerondal's application for adjournment. I do so somewhat reluctantly, given the time that has already elapsed since the Council's motion and supporting material was served upon him. Clearly, the Council's agreement to the adjournment was also relevant to my decision.

1. The Orders that I make are therefore as follows:

1.   I note that the appellant, Paul Gerondal, enters a plea of not guilty to each of the charges of contempt contained in the notice of motion filed on 17 December 2010;

2.   I give leave to the parties to approach the Registrar forthwith in order to obtain a hearing date for a hearing of two days; and

3.   Costs are reserved.

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