| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2015 01051
| MOIRA SHIRE COUNCIL | Applicant |
| v | |
| SIDEBOTTOM GROUP PTY LTD (ACN 102 558 869) | First Respondent |
| and | |
| AUSTRALIAN RUBBER MANUFACTURERS PTY LTD (ACN 086 752 329) | Second Respondent |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2019 |
DATE OF JUDGMENT: | 23 August 2019 |
CASE MAY BE CITED AS: | Moira Shire Council v Sidebottom Group Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 569 |
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CONTEMPT OF COURT – Civil contempt - Breach of undertaking to court – Contempt by breach of court order - Civil contempt penalised by imprisonment – Difference between criminal and civil contempt – Purpose of imposing a penalty for a civil contempt is to coerce compliance - Imprisonment a significant penalty for civil contempt – No further penalty imposed - Successful party entitled to costs paid – Liberty to apply for a costs order pursuant to Appeal Costs Act (Vic) 1998 - Supreme Court (General Civil Procedure)Rules 2015, Rule 66.05.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Appaduri | Russell Kennedy |
| For the First Respondent | Mr D G McCartney, solicitor | Simmons & McCartney |
| For the Second Respondent | Mr D G McCartney, solicitor | Simmons & McCartney |
HER HONOUR:
Background
On 14 December 2016 consent orders were made between Moira Shire Council (the ‘Council’) and Sidebottom Group Pty Ltd (‘the company’) dealing with the responsibility of the company to lawfully dispose of tyre stockpiles and other materials from its land at 7 and 25 Saxon St West, Numurkah (the ‘2016 consent orders’). Those 2016 consent orders set a timetable for removal commencing by 15 January 2017 and concluding by 15 August 2018. The 2016 consent orders also dealt with various obligations on the company during the removal timetable.
Mr Shanan James Sidebottom (‘Sidebottom’), director of the company at the time, consented to the 2016 consent orders on behalf of the company and gave an undertaking to the Court. The undertaking was recorded in the orders as part of other matters. It was in these terms:
Mr Shanan James Sidebottom, director of the First Respondent, undertakes that the First Respondent has the capacity to, and will, comply with this order, and he will personally ensure that the First Respondent complies with each paragraph of this order.
Order 1 of the 2016 consent orders required compliance:
(a) by April 2017, all materials located along the southern and western part of the tyre storage area on the land in the attached site plan (“tyre storage area”) referred to as “A” and marked with “+ signs”;
(b) by 15 August 2017, all rubber materials located along the eastern and northern part of the tyre storage area referred to as “B” and marked with “horizontal lines”;
(c) by 15 December 2017, all materials located along the southern part of the tyre storage area referred to as “C” and marked with “triangle signs”;
(d)by 15 April 2018,…
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- Case
- [2019] VSC 569
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant had breached the undertaking and court order, thereby constituting civil contempt. The court also needed to decide on the appropriate penalty for such a breach, considering the difference between criminal and civil contempt. Civil contempt is intended to coerce compliance rather than punish, and while imprisonment is a significant penalty, it is reserved for cases where there is a clear breach and the need for immediate compliance. The court had to weigh these factors to arrive at a decision.
Upon examining the evidence, the court found that Sidebottom Group Pty Ltd had indeed breached the undertaking and the subsequent order. Given the nature of the breach and the necessity for compliance, the court imposed a penalty of imprisonment. The court noted that the purpose of penalising civil contempt is to ensure compliance, and in this instance, the significant penalty of imprisonment was appropriate. The court also confirmed that the successful party was entitled to costs, which could be applied for under the Appeal Costs Act (Vic) 1998, as per the Supreme Court (General Civil Procedure) Rules 2015, Rule 66.05.
The court ordered that Sidebottom Group Pty Ltd would serve the imposed term of imprisonment and that the Moira Shire Council was entitled to costs. An order was made for the successful party to apply for these costs under the specified legislation. This decision underscored the importance of adhering to court orders and undertakings, highlighting the court's authority to impose significant penalties to ensure compliance.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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