Mosman Municipal Council v Kelly (No 5)

[2009] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION:

Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186

PARTIES:

APPLICANT:
Mosman Municipal Council

RESPONDENT:
David Kelly

FILE NUMBER(S):

40967 of 2006

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to adjourn a contempt sentencing hearing on ground of respondent's ill health.

CASES CITED:

Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92

DATES OF HEARING:

30 November 2009

EX TEMPORE JUDGMENT DATE:

30 November 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Lazarus
SOLICITORS:
Pikes Lawyers

RESPONDENT:
Ms L Williams (agent)
SOLICITORS:
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

30 November 2009

40967 of 2006

MOSMAN MUNICIPAL COUNCIL v DAVID KELLY

EXTEMPORE JUDGMENT

1 HIS HONOUR: This is an application by the respondent Mr David Kelly to adjourn his sentencing hearing for contempt of court for disobeying a Court order.

2 On 31 July 2008 Mr Kelly was ordered by Lloyd J to demolish a two-storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman. He was to comply with that order within a period of four months, that is, by no later than 30 November 2008.

3 That order was a variation of an earlier order made by Jagot J on 19 February 2007. The earlier order was made in similar terms except that it required compliance within a sixty day period and that instance by no later than 20 April 2007.

4 The applicant, Mosman Municipal Council charged Mr Kelly with contempt of court for disobeying the order of 31 July 2008.

5 On 19 June 2009 I found that Mr Kelly had breached the order of 31 July 2008 and was in contempt of court: Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92. I also made directions for the sentencing hearing, including that the respondent file and serve his evidence by 17 July and submissions by the third last working day before the hearing. A hearing date for sentencing was fixed for 31 August 2009.

6 On 28 August 2009 Mr Kelly obtained an adjournment of the sentencing hearing which had been fixed for 31 August 2009 on the basis of his ill health. The affidavit in support of that successful adjournment application was by the solicitor then acting for him and attached two medical certificates certifying that he been admitted to hospital on 26 July 2009 and treated for heart disease and had had by-pass surgery on 5 August 2009. They indicated that he would be convalescing until 13 November 2009 and would be unavailable for court in that period.

7 The sentencing hearing was then fixed for today. Until recently Mr Kelly has been legally represented. Today he is represented by an agent. In breach of the Court’s directions, Mr Kelly filed no evidence until this morning when he filed an affidavit by an architect and has filed no submissions.

8 Mr Kelly’s adjournment application today is supported by an affidavit to which is attached a medical certificate apparently by a general practitioner. The council submits that it is insufficient to establish a medical basis for an adjournment. The medical certificate is open to criticism is that it is undated and short of detail. It merely certifies that, in the opinion of the medical practitioner, Mr Kelly is “suffering from complications after heart surgery” and that he will be unfit to work from 27 November 2009 to 8 December 2009. Although it is undated, the inference seems to be that he was examined on about 27 November 2009. It nowhere elaborates on the nature of the ill health which he is now suffering apart from referring to complications. Nor does it address the specific question whether he could attend today to give instructions to his agent.

9 I take into account that this matter has had a very long history.

10 Nevertheless, I think that a person facing sentencing is generally entitled to be present at their sentencing hearing and, on balance, I am sufficiently persuaded by the medical evidence to conclude that the risk to Mr Kelly’s health is such that I should grant the adjournment application. I direct the parties to proceed forthwith to the registry to obtain the first available hearing date in the New Year before me. The costs of today are reserved.

11 After delivering the above reasons, the council raised the question whether Mr Kelly would also be seeking to adjourn the hearing of his discrete notice of motion filed on 2 April 2009 charging the council with contempt for enforcing a costs order made by Jagot J. It is listed for hearing next Monday. I direct that any application to adjourn that notice of motion be made today before me and I give leave to the parties to list the matter before me today for that purpose.