P F T McGirr v D Xenos - [2006] NSWLEC 60

Reported Decision: 144 LGERA 172

Land and Environment Court

of New South Wales

CITATION: P F T McGirr v D Xenos [2006] NSWLEC 60

PARTIES:
APPLICANT:
P F T McGIRR
RESPONDENT:
D Xenos

FILE NUMBER(S): 31412 of 2003

CORAM: Bignold J

KEY ISSUES: Contempt :- Alleged failures to comply with Court’s Consent Orders—objection to competency of the Contempt Motion because of failure to comply with Rules of Court.

LEGISLATION CITED: Supreme Court Rules 1970 (SCR), Part 42 Rule 8 and Part 55 Rule 13

CASES CITED: Australian Meat Industry Employee’s Union v Mudginberri Station (1986) 161 CLR 98;
Bourke Shire Council v Dwyer (1993) 79 LGERA 185;
Clifford v Middleton (1974) VR 737;
Doyle v The Commonwealth (1985) 156 CLR 510;
Gordon v Gordon (1946) P99;
Iberian Trust Ltd v Founders Trust and Investment Co Ltd (1932) 2 KB 87;
Miller v Eurovox Pty Ltd (2004) VSCA 211;
Primelife Corp Ltd v Newpark Pty Ltd (2003) VSC 106;
Stancomb v Trowbridge Urban Council (1910) 2 Ch 190;
Westpac Banking Corporation v Maher (1995) BC 9502504;
Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING: 11/08/2005, 15/08/2005, 17/08/2005, 02/09/2005

DATE OF JUDGMENT:
02/17/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P W Larkin, Barrister
SOLICITORS
McGirr James Hall and Associates
RESPONDENT:
Mr T S Hale SC and Mr M S White, Barrister
SOLICITORS
Diamond Peisah & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

17 February 2006

31412 of 2003 PAUL FRANCIS TAYLOR MCGIRR v DIONISIOS XENOS
JUDGMENT

HIS HONOUR

A. INTRODUCTION

1 By Notice of Motion filed 23 February 2005 the Applicant sought orders that the Respondent be found guilty of contempt of Court for failing to comply with Consent Orders made by the Court on 20 May 2004, and be punished “by committal to prison and/or sequestration of property and/or by way of fine”.

2 Although the Respondent has defended the Contempt Motion on the merits, his principal defence has been to raise technical objection to the Contempt process on the grounds that there has been non-compliance with the requirements of Part 42 Rule 8 of the Supreme Court Rules 1970 (SCR) (which apply to this Court by virtue of Part 6 Rule 1(1) and (5) of the Land and Environment Court Rules).

3 It appears to be accepted by the Applicant that there has been a relevant non-compliance with SCR Part 42 Rule 8 inasmuch as there was no personal service on the Respondent of a minute of the Courts Orders and more particularly, that there was no service of such a minute bearing the penalty notice prescribed by Part 42 r 8(3).

4 However, the Applicant seeks to answer the Respondent’s technical objection in the two discrete ways—firstly he relies upon the dispensing power vested in the Court by Part 42 r 8(6) and secondly he submits that the requirements of Part 42 r 8 do not apply to a case involving the punishment of the contemnor…

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: [2006] NSWLEC 60
Decision Date: 02/17/2006

CaseChat Overview and Summary

This case involved a dispute between P F T McGirr (the Applicant) and D Xenos (the Respondent) regarding the enforcement of Consent Orders made by the Land and Environment Court of New South Wales in a previous litigation. The Applicant alleged that the Respondent failed to comply with the Consent Orders and sought a finding of contempt and various remedies, including imprisonment, sequestration of property, and a fine. The legal issues before the court were whether the Respondent's failure to comply with the Consent Orders constituted contempt and whether the Applicant's Contempt Motion was procedurally valid.

The court found that the Respondent had indeed failed to comply with the Consent Orders, as the works required by the orders had not been completed within the specified time and the required easements had not been registered. However, the court also found that the Contempt Motion was procedurally flawed, as the Applicant had not complied with the requirements of Part 42 Rule 8 of the Supreme Court Rules 1970 (SCR). This rule requires that a minute of the judgment be served personally on the person bound by the order, along with a penalty notice warning of the consequences of non-compliance. The Applicant had not served such a minute on the Respondent, nor had they served a sealed copy of the Court's orders with or without the endorsement of the penalty notice.

The Applicant attempted to argue that the procedural flaws could be overcome by the Court's discretion under Part 42 Rule 8(6) or that the failure to comply with Part 42 Rules 8(1) and (3) was irrelevant since the Court could still punish contempt by imposing a fine. However, the court rejected these arguments, finding that the circumstances of the case did not warrant the exercise of the Court's discretion and that the procedural flaws were fatal to the Contempt Motion.

The court also found that the Applicant's Contempt Motion was not seeking punishment for contempt, but rather enforcement of the Consent Orders. Therefore, the belated attempt to invoke the power to punish by fine was both procedurally unfair and substantively unsupportable. The court concluded that a finding of contempt was not supportable outside the context of the Applicant's Contempt Motion.

As a result, the court dismissed the claims in the Applicant's Notice of Motion related to contempt and ordered that each party bear their own costs in respect of those dismissed claims. The court also noted that the Respondent should have raised the legal objection to the competency of the Contempt Motion earlier in the proceedings and that both parties had incurred extravagant costs due to the manner in which they had conducted themselves throughout the litigation history.

Orders