Holroyd City Council v Khoury (No 2)

[2016] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:	Holroyd City Council v Khoury (No 2) [2016] NSWLEC 31
Hearing dates:	31 March 2016
Date of orders:	31 March 2016
Decision date:	31 March 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [5]
Catchwords:	CONTEMPT – orders to attend to answer contempt charge – failure to attend as ordered – bench warrant issued for arrest to bring before the Court
Legislation Cited:	Civil Procedure Act 2005
Category:	Procedural and other rulings
Parties:	Holroyd City Council (Applicant) Robert Khoury (Respondent)
Representation:	Counsel: Mr M Fozzard, barrister (Applicant) No appearance (Respondent)   Solicitors: Bilias & Associates (Applicant)
File Number(s):	40945 of 2014
Publication restriction:	No

Judgment

1. HIS HONOUR: On Tuesday 29 March 2016, in Holroyd City Council v Khoury (2016) NSWLEC 29, I explained the reasons why I was satisfied that there was proper evidentiary foundation based on an affidavit of service of Malcolm Colin Grace (read at that time) to order the arrest of Mr Robert Khoury and for him to be brought before the Court to answer the charges of contempt that have been brought against him by Holroyd City Council.

2. On that day, I made orders for the issuing of an arrest warrant addressed to the Sheriff of New South Wales to arrest Mr Khoury and bring him before me, specifically, at 10am this morning, 31 March. As at 10am this morning, Mr Khoury was not in attendance and after having the matter called three times outside the Court, there was no response to the call. I am satisfied that it remains appropriate for Mr Khoury to be brought before me to answer the charges laid against him.

3. I have considered the suggestion made by Mr Fozzard that it might be appropriate to follow a course of events discussed by Palmer J in ASIC v Michalik and Ors (No 2) (2004) NSWSC 1260 where, in that instance, his Honour ordered that a person be detained in custody without any discretion being vested in the sheriff or the sheriff’s officers as to determining the necessity for such custody and that the person so detained be detained until they were able to be brought before the Court.

4. Although that is a matter that may arise on some future occasion if Mr Khoury is not able to be brought before the Court pursuant to the arrest warrant that I propose to issue as a result of this morning’s proceedings, it is not a matter that I consider appropriate to use as a course to follow, at least for now.

5. Therefore I order:

1. Pursuant to s 97 of the Civil Procedure Act 2005 that an arrest warrant issue addressed to the Sheriff of New South Wales and all sheriff’s officers to arrest Robert Khoury of 36 Francis Street, South Wentworthville New South Wales and bring him before the Court sitting at court 5B, level 5, 225 Macquarie Street, Sydney detaining that person if necessary in custody in the meantime.

The arrest warrant is issued for disobedience of an order made on 18 March 2016 to attend court on 29 March 2016 to answer a motion for contempt of court. The warrant is sufficient authority for the sheriff with the assistance of such police officers that may be necessary to arrest the person named in the warrant and bring him before the Court;

2. The proceedings are otherwise listed before me at 9.30am on 6 April 2016 unless the said Robert Khoury has been brought before the Court pursuant to (1) prior to that time; and

3. The matter is adjourned.

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