Land and Environment Court
of New South Wales
CITATION: Hurstville City Council v Jacobs [2008] NSWLEC 237 PARTIES: APPLICANT:
RESPONDENT:
Hurstville City Council
Kevin Roy JacobsFILE NUMBER(S): 40013 of 2006 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- application to vacate hearing date and to stay proceedings. LEGISLATION CITED: Local Government Act 1993 (NSW), s 678 CASES CITED: Hurstville City Council v Jacobs [2007] NSWLEC 630 DATES OF HEARING: 5 August 2008 EX TEMPORE JUDGMENT DATE: 5 August 2008 LEGAL REPRESENTATIVES: APPLICANT:
Dr S. Berveling, barrister
SOLICITORS
HWL EbsworthRESPONDENT:
Mr K. R. Jacobs (in person)
SOLICITORS
N/A
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
5 August 2008
40013 of 2006
EX TEMPORE JUDGMENTHURSTVILLE CITY COUNCIL v KEVIN ROY JACOBS
1 HIS HONOUR: These proceedings by Hurstville City Council against Mr Kevin Jacobs are listed for hearing before me today. At the moment I am dealing with a notice of motion by Mr Jacobs filed on 29 July 2008 that the hearing date be vacated and that the council’s proceedings be stayed pending the further progress of his application for leave to appeal to the High Court of Australia No S334 of 2008 filed on 17 July 2008.
2 The proceedings listed for hearing before me today are constituted by the council’s further amended notice of motion filed on 2 June 2008 which seeks the following:
(a) that Mr Jacobs be found guilty of contempt of this Court for failing to comply with consent orders made on 21 April 2006 ( consent orders ) requiring that he comply with orders 1 and 2 of an order dated 3 November 2004 issued by the council ( council order ) in respect of property known as 75 Clarke Street, Peakhurst, by removing miscellaneous refuse, extraneous items, building materials and overgrown vegetation from the property to an approved waste facility in accordance with a specified timetable;
(b) that Mr Jacobs be punished for disobeying the consent orders by committal to prison or fine or sequestration of property; and
(c) that an order pursuant to s 678(10) of the Local Government Act 1993 (NSW), and ancillary or related orders, be made; primarily, that the council, its servants and agents be ordered to execute the council’s functions under s 678 by carrying out the work which was required to be carried out at the premises by paras 1 and 2 of the council order as modified by the consent orders.
3 It is necessary to say something about Mr Jacobs’ pending application for special leave to appeal to the High Court. The proceedings have a remarkably long history given their nature. They were commenced in 2006 and appeared to have been settled by the consent orders in April 2006. On 18 September 2007, Jagot J dismissed Mr Jacob’s notice of motion in which he sought to have the consent orders set aside: Hurstville City Council v Jacobs [2007] NSWLEC 630. His application for leave to appeal…
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- Case
- [2008] NSWLEC 237
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether Mr Jacobs' application for vacating the hearing date and staying the proceedings was justified. It had to consider whether the council's application for a declaration of contempt was an abuse of process, and whether the contempt application should proceed concurrently with the appeal to the High Court. The court also needed to determine whether the proceedings should be stayed pending the outcome of Mr Jacobs' application for special leave to appeal.
The court dismissed Mr Jacobs' motion to vacate the hearing date and stay the proceedings, finding that the council's application for a declaration of contempt was not an abuse of process. The court reasoned that the council's application was legitimate and necessary to enforce compliance with a court order. The court also noted that the contempt application could proceed concurrently with the appeal to the High Court, as the two were not mutually exclusive. By consent of the parties, the court stayed certain paragraphs of the council’s further amended notice of motion relating to the contempt charge until the determination of Mr Jacobs’ application for special leave to appeal to the High Court. The court directed the parties to re-list the matter promptly after the outcome of that appeal.
Orders
Orders of the court
I dismiss Mr Jacobs’ notice of motion insofar as it seeks vacation of the hearing date in relation to the relief which the council seeks under s 678 of the Local Government Act 1993 and a stay of the proceedings for that relief. I will proceed to hear that matter.
By consent, I order that paras 1 and 2 of the council’s further amended notice of motion filed on 2 June 2008 relating to the contempt charge, be stayed until determination of Mr Jacob’s application for special leave to appeal to the High Court or further order. I direct the parties to re-list the matter promptly after determination of that special leave application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Legal Principle Established
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