Gosford City Council v Tauszik - [2005] NSWLEC 493

Land and Environment Court

of New South Wales

CITATION:
Gosford City Council v Tauszik [2005] NSWLEC 493

PARTIES:
PROSECUTOR
Gosford City Council
DEFENDANT
Anthony Tauszik

FILE NUMBER(S):
50001 of 2003

CORAM:
Cowdroy J

KEY ISSUES:
Practice and Procedure :- orders - remediation order - application to extend time for compliance with order pending appeal - power of Court to extend time for orders other than for payment of money - application of Pt 2 Supreme Court Rules in Land and Environment Court - Pt 1 r 8 Land and Environment Court Rules

LEGISLATION CITED:
Criminal Appeal Act 1912 s 28
Criminal Appeal Rules r 15
Environmental Planning and Assessment Act 1979 s 126(3), s 127
Land and Environment Court Act 1979 s 21(f), s 56
Land and Environment Court Rules 1996 Pt 1 r 8, Pt 6 r 2
Supreme Court Rules 1970 Pt 2 r 3, Pt 44, Pt 75 r 2, r 6

CASES CITED:
Bailey v Marinoff (1971) 125 CLR 529;
Farrell v Ussher & Ors [1991] NSWLEC 10;
Gamser v The Nominal Defendant (1977) 136 CLR 145

DATES OF HEARING: 16/05/2005

EX TEMPORE JUDGMENT DATE:
05/17/2005

LEGAL REPRESENTATIVES:
PROSECUTOR
D Buchanan SC with M Fraser
SOLICITORS
P J Donnellan & Co
DEFENDANT
T G Howard
SOLICITORS
W Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

17 May 2005

50001 of 2003

GOSFORD CITY COUNCIL
Prosecutor

ANTHONY TAUSZIK
Defendant
JUDGMENT

1 Cowdroy J: By notice of motion filed on 11 May 2005 the defendant seeks a stay of the Orders and Further Orders made by this Court on 22 April 2005 (“the Orders”). The Orders required the defendant, within one month of the making of the Orders, to pay a fine of $25,000, to pay the costs of the proceedings, to plant and maintain two Norfolk Island Pine trees on his land at 6 Pearl Parade, Pearl Beach and to lodge a bond with the prosecutor of $10,000. As the requirement for compliance with the Orders is imminent, this judgment is delivered ex tempore.

2 The stay is sought in view of the institution of an appeal by the defendant in the Court of Criminal Appeal from his conviction and from the Orders.

3 The prosecutor does not oppose the orders a stay of the Orders but submits that this Court has no jurisdiction to grant such relief.

Defendant’s submissions

(a) Application of Rule 15

4 The defendant relies upon r 15 of the Criminal Appeal Rules (“r 15”) made pursuant to s 28 of the Criminal Appeal Act 1912. Rule 15 provides:-

Where a person is ordered to pay money as a penalty or for costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms Nos XX and XXI) to prosecute an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and…

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 493
Decision Date: 05/17/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Gosford City Council brought a case against Anthony Tauszik over an environmental dispute. The Council sought compliance from Tauszik to pay a fine, costs, plant and maintain trees, and lodge a bond. Tauszik appealed against these orders, seeking a stay of execution pending the appeal. The primary legal issue revolved around the court's jurisdiction to grant a stay of execution for non-monetary orders, such as planting trees, and whether such a stay could be granted under the Supreme Court Rules or inherent jurisdiction of the court.

The court considered submissions from both parties on the applicability of Rule 15 of the Criminal Appeal Rules, Division 2 of Part 75 of the Supreme Court Rules, and the inherent jurisdiction of the court. The defendant argued for the applicability of these provisions to non-monetary orders, while the prosecutor contended that the court lacked jurisdiction to grant such a stay once orders had been perfected. The court found that Part 2 Rule 3 of the Supreme Court Rules and Part 1 Rule 8 of the Land and Environment Court Rules provided the necessary power to extend the time for compliance with an order both before and after the time for compliance had expired. Therefore, the court held that it had the jurisdiction to suspend the orders pending the determination of the appeal, provided the appeal was prosecuted with due diligence.

The court made an order extending the time for compliance with the orders made on April 22, 2005, until 30 days after the abandonment of the appeal or the determination of the appeal by the Court of Criminal Appeal, subject to the condition that the appeal be prosecuted diligently. The order also granted liberty to either party to apply for further relief.

Orders