Holroyd City Council v Eksiklioglu

[2008] NSWLEC 42

Land and Environment Court

of New South Wales

CITATION:

Holroyd City Council v Eksiklioglu [2008] NSWLEC 42

PARTIES:

APPLICANT
Holroyd City Council

RESPONDENT
Jemina Eksiklioglu

FILE NUMBER(S):

41328 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Contempt :- failure to comply with consent orders issued by the Court

DATES OF HEARING:

31 January 2008

EX TEMPORE JUDGMENT DATE:

31 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, Solicitor of
McKees Legal Solutions

RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

31 January 2008

41328 of 2007

HOLROYD CITY COUNCIL v JEMINA EKSIKLIOGLU

EXTEMPORE JUDGMENT

1 His Honour: The Respondent has pleaded guilty to a charge of contempt brought by the Applicant Council in respect of her persistent breaches of orders made by Biscoe J of this Court, with her consent, on 24 December 2007, regarding the keeping of dogs at her then Department of Housing home in Westmead.

2 On or about 26 January 2008 the Department of Housing relocated the Respondent and her family to a different property, outside Council’s area, but still in the Parramatta region. Mr McKee, as the prosecutor on the Council’s behalf, has informed the Court of the Respondent’s very difficult personal and domestic circumstances, which I won’t repeat, but which include the very serious medical condition afflicting her six-year-old child. In short, the Respondent is a deserted mother of 4 children aged between 2 and 16. Although keen to work, she obviously has serious restrictions on her earning capacity, and needs to remain close to Westmead Hospital.

3 Having relocated outside Council’s area, the dog-keeping behaviour at the heart of these proceedings ceased as of last weekend. Nonetheless, there is overwhelming evidence that Biscoe J’s orders of 24 December 2007 were not complied with at any time up to and including 25 January 2008.

4 Apart from the Respondent consenting to those orders, there is evidence of an unfulfilled undertaking given by her to the Council, concerning the dogs, on 31 October 2007, and further consent orders, requiring reduction in the dog numbers, entered by the Assistant Registrar of this Court on 18 January 2008.

5 The Respondent assures the Court that she understands and accepts the serious situation in which she now finds herself. The Court is no longer concerned with the background which gave rise to these Class 4 proceedings, but is particularly concerned with what presents as the flagrant disregard of the Court’s orders.

6 The Respondent has had no legal advice or representation, but freely acknowledges that she is guilty of contempt. She has already agreed to pay the Council’s costs in respect of the substantive proceedings, agreed at $5,000, and acknowledged before me that she would have to pay the Council’s costs of these contempt proceedings, estimated at approximately $10,000.

7 In normal circumstances I would impose a very substantial fine, based in part on some daily penalty, certainly in respect of the period 18 to 25 January 2008. However, I simply must have some regard for this lady’s personal circumstances, and for her explanation that her attitude, in even the most trying situations, is blasé rather than what the law of contempt describes as “contumacious”. Her behaviour is not, however, moderated by any evidence of a genuine effort to comply, and she must pay some penalty, in the end, for her failure to seek any relaxation of the timetables, to which she agreed, for compliance.

8 I have determined that I should impose a fine of $1,000, and make an order that the Respondent pay an amount of $10,000 in respect of the Council’s costs of this prosecution.

9 The formal orders of the Court will be:

1. The Respondent is convicted of the charge of contempt particularised in the Statement of Charge dated 9 January 2008.
2. The Respondent is fined $1,000.
3. The Respondent is ordered to pay $10,000 in respect of the Council’s costs of these contempt proceedings, in addition to the amount of costs ordered in respect of the original proceedings.
4. The exhibit is to remain in the Court file.

10 I warn the Respondent that she should make a genuine attempt to pay this token fine, and the two amounts of costs, as soon as possible, and not to expect any further leniency should she come before this Court again in the future.