Moira Shire Council v Sidebottom Group Pty Ltd - [2019] VSC 569

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 569
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the case of Moira Shire Council versus Sidebottom Group Pty Ltd, the matter was heard in the Supreme Court of Victoria. The dispute involved an allegation that Sidebottom Group Pty Ltd had breached an undertaking given to the court and a subsequent court order. The council sought an enforcement of the order and penalties for the alleged contempt. The court was tasked with determining whether the defendant had indeed breached the undertaking and order, and if so, what penalties should be imposed.

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.

Orders