Manly Council v Angelo

[2001] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:	Manly Council v Angelo [2001] NSWLEC 194
PARTIES:	APPLICANT: Manly Council RESPONDENT: Angelo
FILE NUMBER(S):	40056 of 2001
CORAM:	Bignold J
KEY ISSUES:	Contempt :- Disobedience of Court's Orders-Motion heard ex parte-Fine imposed for continuing contempt.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	2 August 2001
EX TEMPORE JUDGMENT DATE :	08/02/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Graham SOLICITORS Abbott Tout RESPONDENT: N/A SOLICITORS N/A

JUDGMENT:

IN THE LAND AND

Matter No. 40056 of 1994

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

2 August 2001

MANLY COUNCIL

Applicant

v

D P ANGELO

Respondent

JUDGMENT

Bignold J:

1. By its Notice of Motion filed on 20 March this year, Manly Council seeks orders of the Court finding the Respondent, Danny Peter Angelo, guilty of contempt of Court inasmuch as he has failed to comply with obligations imposed upon him by orders made by the Court originally propounded in the Court’s judgment dated 10 July 1995, but revived and reformulated by further orders dated 17 March 1999. On that latter occasion, I found the Respondent to be guilty of contempt of Court by virtue of his disobedience of the Court’s orders originally made against him in the 1995 judgment. I imposed a penalty of $1000 for the found contempt but I ordered that it be suspended (and ultimately remitted) if the outstanding works required by the Court’s orders to be undertaken on an existing dwelling-house situate at 69 Wood Street, Manly (of which Mr Angelo is a co-owner with his brother) if such works were undertaken within six months of the date of those orders.

2. The affidavit evidence read by the Council today entirely satisfies me that there has been continuing disobedience of the Court’s orders.

3. The Respondent has not appeared today and service of the process was effected upon him by virtue of substituted service in accordance with orders made by the Court on 22 June this year, such service being effected by affixing process to the premises at 69 Wood Street, Manly and in addition to premises at 67 Goondari Road, Allambie, (the latter premises I assume being those at which the Respondent is known from time to time to reside).

4. Although it is not usual for the Court to entertain a contempt motion in the absence of the contemnor, in the circumstances of this case where there has already been a finding of contempt made on 11 February 1999, and a penalty imposed on 17 March 1999 as I have earlier indicated, and in circumstances where the Council, in bringing the matter before the Court today, has not suggested, at least at this stage, that the punishment for the proven contempt should include committal to imprisonment of the contemnor, I have decided that it is fair and reasonable to proceed to entertain the Council’s Motion despite the non-appearance by Mr Angelo, being satisfied by the evidence that service of the process was effected in accordance with the mode prescribed by the Court’s orders for substituted service. As I have indicated, the evidence of the Council entirely satisfies me that there has been no compliance whatsoever with the Court’s orders.

5. This is a matter that has serious consequences, not only for the contemnor but, for the authority and (respect for the Court’s authority) of orders made by this Court in its administration of justice. The orders made require corrective or rectification work to uncompleted building works undertaken at the premises in Wood Street, Manly. The required works have been long outstanding, dating back to the Court’s original orders in 1995. In an endeavour to bring the matter to satisfactory completion following the making of the Court’s orders on 17 March 1999 (and following the expiry of the six months referred to in those orders without compliance) the Council made a very reasonable offer to Mr Angelo, in quest of bringing about a satisfactory state of compliance, by requiring him to undertake only one of the particular outstanding items of building work referred to in the Court’s orders, namely that referred to in Order No. 1(a) which required the reconstruction of the roof upon the premises so as to provide eaves and gutters in accordance with the approved building plans referred to in the Order. Despite this very accommodating offer by the Council, that particular work has not been undertaken.

6. In the circumstances, and on the basis of the clear evidence, I am satisfied that the Respondent, Danny Peter Angelo, is guilty of contempt of Court by virtue of his disobedience of the Court’s orders.

7. On the last occasion great restraint and leniency was accorded to Mr Angelo in as much as a modest fine of $1000 was imposed, capable of being remitted in the event of the requisite work being done within six months. As I have noted, that order has been entirely disobeyed. The ongoing disobedience of the Court’s orders must therefore be regarded the more seriously and the existing contempt must be regarded as having been compounded.

8. Unlike the last occasion when Mr Angelo appeared and gave some explanation of his plight (financial and otherwise) on this occasion he has not appeared and there is no evidence suggestive of any reason why he has not complied with the Court’s orders.

9. In defence of the Court’s authority and the proper standing of Court’s orders in the administration of justice, it appears to me to be now necessary to visit the ongoing contempt with a more severe punishment than that imposed for the original contempt. I therefore propose to impose, in quest of bringing about a state of compliance with the Court’s orders and by way of coercive remedy, a daily penalty of $500 while ever the contempt (by virtue of the disobedience of orders) continues. However, the effect of this coercive fine will be mollified by providing that the daily fine will be remitted in the event of the work referred to in order 1(a) of the Court’s Orders made originally on 10 July 1995 (that is the works of modifying the roof structure to provide eaves and gutters in accordance with the approved drawings) being undertaken within 28 days of service of the Court’s Orders.

10. Service of the Court’s orders may be effected in accordance with the mode for substituted service ordered by the Court on 22 June this year. I will reserve liberty to the Council to restore on three days notice in the event of their being further default by the Respondent.

11. In coming to the conclusion that a more severe penalty than that imposed on 17 March 1999 must be imposed, I also take into account the obvious fact that the lack of proper eaves and gutters to the existing dwelling house involves, inevitably, considerable inconvenience to adjoining properties which are situate close by to the subject premises, by virtue of water simply cascading from the roof of the subject premises onto the adjoining premises.

12. For all the foregoing reasons I make the following orders:

1. The Respondent, Danny Peter Angelo is found guilty of the contempt of Court as stated in the Statement of Charge annexed to the Council’s Notice of Motion filed 20 March 2001.

2. A daily fine of $500 is imposed in respect of the contempt while ever the Court’s orders remain disobeyed.

3. In the event of the Respondent carrying out the works referred to in Order No. 1(a) of the Court’s orders made on 10 July 1995, the daily fine imposed by Order 2 is remitted provided that such work is satisfactorily carried out within 28 days of service of the Court’s Orders.

4. Service of the minute of orders made in this case may be effected by substituted service in the mode ordered by the Court’s orders made on 22 June 2001.

5. The Respondent is to pay the Council’s costs of today’s proceedings and the costs of its Motion obtaining orders for substituted service in the sum agreed, or failing agreement, as assessed.

6. Liberty to restore on three days notice.