Kyogle Council v Manning
[2001] NSWLEC 9
•12/08/2000
Land and Environment Court
of New South Wales
CITATION: Kyogle Council v Manning [2001] NSWLEC 9 PARTIES: APPLICANT:
Kyogle CouncilRESPONDENT:
John Joseph ManningFILE NUMBER(S): 40102 of 1999 CORAM: Lloyd J KEY ISSUES: Contempt :- failure to comply with orders relating to the keeping of dogs - belated compliance - penalty LEGISLATION CITED: Local Government Act 1993 s 124 and s 180 CASES CITED: DATES OF HEARING: 08/12/2000 EX TEMPORE
JUDGMENT DATE :
12/08/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr P J McEwen SC
SOLICITORS:
Stone & Partners
Mr J J Manning - in person
SOLICITORS:
N/A
JUDGMENT:
1
IN THE LAND AND Matter No: 40102 of 1999
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 8 December 2000
Kyogle Council
Applicant
v
John Joseph Manning
Respondent
EXTEMPORE JUDGMENT
HIS HONOUR:
1. By an amended notice of motion the applicant claims that the respondent is in contempt of orders of the Court in that he has failed to comply with orders of the Court made on 10 July 1998 and has failed to comply with orders numbered 1 and 2 of the Court made on 14 July 1999, the former orders having been made pursuant to sections 124 and 180 of the Local Government Act 1993.
2. The matter has had a rather lengthy history. On 3 October 1997 the applicant (which I shall call “the Council”) issued an order pursuant to section 124 of the Local Government Act and served it on the respondent. On 3 November 1997 the respondent, Mr J J Manning, lodged an appeal pursuant to section 180 of the Local Government Act against the Council’s order. The Council’s order related to the keeping of dogs at premises occupied by the respondent. The Council had received, and continues to receive complaints from the occupiers of neighbouring properties regarding a nuisance from the barking of dogs on the property occupied by the respondent.
3. On 26 June 1998 Commissioner Watts heard the appeal under section 180 of the Local Government Act, and on 10 July 1998 he delivered a reserved judgment. In the reserved judgment the Commissioner allowed the appeal under section 180 of the Local Government Act, revoked the order made by the Council under section 124 of the Local Government Act and made a new order under section 124 of the Local Government Act.
4. By the new order the respondent was required to re-locate the dogs and the enclosure in which they had been kept to another location and to adopt noise attenuation measures at the new location of the dog enclosure. The order also required that the dogs be kept in accordance with a site management plan; a chain wire fence 2.43 metres high was to be provided around the enclosure; the dog compound was to be cleaned daily; and the number of dogs was not to exceed 120. The Commissioner fixed a time limit of 6 months within which Mr Manning had to comply with the order.
5. The site management plan referred to in the orders contained detailed provisions relating to the kind of fencing required. It required that the kennels be constructed of, or have a roof and floor made of, timber and that they be waterproof. The management plan also referred to various other procedures to be adopted in the keeping of the dogs.
6. It seems that the Council continued to receive complaints regarding the keeping of dogs on the respondent’s property, including barking nuisance and the straying of dogs. The Commissioner’s order had to be complied with by 10 January 1999. Following that date the Council continued to receive complaints regarding the barking of dogs and the straying of dogs from the property.
7. On 7 May 1999 the Council’s solicitors wrote to the respondent’s then solicitor advising that if the respondent did not comply with the orders made by the Commissioner by 21 May 1999 the Council would commence proceedings in Class 4 of the Court’s jurisdiction.
8. On 26 May 1999 the Council commenced proceedings in Class 4 of the Court’s jurisdiction seeking an order that the respondent comply immediately with the order made by the Court pursuant to sections 124 and 180 of the Local Government Act.
9. On 14 July 1999 those proceedings came before me and I made orders: (1) that the respondent on or before 5pm on Wednesday 28 July 1999 comply with the Court’s orders of 10 July 1998; and (2) that the respondent pay the applicant Council’s costs.
10. There is evidence before me that on 29 July 1999 officers of the Council inspected the property and found that the respondent had not complied with the Court’s orders of 14 July 1999.
11. On 28 February 2000 the Council’s notice of motion for contempt was filed. That motion came before me on 6 June 2000 and was stood over to a date to be fixed.
12. On 6 July 2000 the Council filed an amended notice of motion citing particulars of the respondent’s alleged failure to give effect to the Commissioner’s orders of 10 July 1998.
13. On 11 August 2000 the matter came before me and I heard further evidence, which showed that not all that the respondent was required to do pursuant to the orders made by the Commissioner had been done. The proceedings were stood over to today to enable the respondent to comply with all of the Commissioner’s orders and the respondent was also ordered to pay the applicant’s costs to that date.
14. The evidence satisfies me that the respondent has now complied with the orders of the Court made by Commissioner Watts in 1998. I have also been informed that at present there are no dogs kept on the property. It seems, however, that it is the respondent’s intention to move the dogs back on to the property from the place where they are presently being held. I am satisfied that until very recently the respondent has been in contempt of the Court’s orders but that he has now taken the opportunity to purge his contempt and has belatedly complied with these orders.
15. The respondent gave evidence before me on 11 August 2000 to the effect that he had had some difficulty in complying with the orders by the appropriate date because of unseasonally wet weather; that the site of the new compound was constructed principally on clay and that it was extremely difficult to perform any works on the site of the new compound until the ground had dried out. That, however, was not the sole case of the delay.
16. The question then remains as to what should be done in respect of the motion. Contempt of court is a serious matter. It involves an interference with the due administration of justice either in a particular case or more generally as a continuing process. The characteristic of contempt proceedings is that they are taken to emphasise the importance of the operation of the law and to uphold and to protect the effective administration of justice and of orders made by the Court. The system of justice depends very much on orders of the Court being observed or carried into fulfilment.
17. The respondent informs me that he has already incurred considerable expenditure. The expenditure on the original dog compound was, I am told, in the order of some twenty thousand dollars. He has spent a similar sum on the construction of the new dog compound required by Commissioner Watts’ orders of 10 July 1998. The respondent also says that he has incurred approximately twenty five thousand dollars in his own legal costs and, of course, has been required by order to pay the Council’s legal costs to 11 August 2000, such costs apparently being in the vicinity of forty five thousand dollars. It is also apparent that the respondent will have to pay the additional costs of the hearing today. Nevertheless, the seriousness with which the Court regards contempt of its orders means that some monetary penalty should be imposed and that is what I propose to do.
18. The formal orders of the Court are therefore as follows:
- 1 I find the charge of contempt proved.
2 I order the respondent to pay a penalty for such contempt in the sum of fifteen thousand dollars ($15,000.00).
3 The respondent must pay the applicant’s costs which have been incurred since 11 August 2000 up to and including today.
4. The exhibits may be returned.
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