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Randwick City Council v Athens (No. 10)

Randwick City Council v Athens (No. 10)

Case [2004] NSWLEC 332

Contempt of Court

Judicial Review

Compensatory Damages

Breach of Contract

Unconscionable Conduct

Environmental Law

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION: Randwick City Council v Athens and Anor (No. 10) [2004] NSWLEC 332

PARTIES:
APPLICANT
Randwick City Council
FIRST RESPONDENT
Peta Athens
SECOND RESPONDENT
Athens Holdings Pty Limited (ACN 001 166 552)

FILE NUMBER(S): 40097 of 2000

CORAM: Cowdroy J

KEY ISSUES: Contempt :- assessment of penalty

LEGISLATION CITED: Crimes (Sentencing Procedure Act) 1999
Environmental Planning and Assessment Act 1979, s 118C
Local Government Act 1993

CASES CITED: Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98;
Australian Competition and Consumer Commission v Hughes [2001] FCA 38;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350;
Environment Protection Authority v Alkem Drums Pty Ltd (2000-2001) 113 LGERA 130;
Hawkesbury City Council and Anor v Mushroom Composters Pty Limited, Pearlman J, Land and Environment Court of New South Wales, 4 August 1995, unreported;
Latoudis v Casey (1990) 170 CLR 534;
Mill v The Queen (1988-1989) 166 CLR 59;
Pearce v The Queen (1998) 194 CLR 610;
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527;
Randwick City Council v Athens & Anor [2001] NSWLEC 110;
Randwick City Council v Athens and Anor (No. 7) [2004] NSWLEC 213;
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

DATES OF HEARING: 28/01/2004; 29/01/2004; 30/01/2004; 11/03/2004; 25/03/2004; 20/04/2004; 21/04/2004; 22/04/2004; 23/04/2004; 27/04/2004; 28/04/2004; 29/04/2004; 31/05/2004; 04/06/2004

EX TEMPORE
JUDGMENT DATE : 06/04/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Thompson (Barrister)
SOLICITORS
Bowen & Gerathy
RESPONDENTS
Mr D. Buchanan SC
SOLICITORS
Levitt Robinson Solicitors and Associates

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40097 of 2000

Cowdroy J

4 June 2004

Randwick City Council

Applicant

Peta Athens

First Respondent

Athens Holding Pty Limited (ACN 001 166 552)

Second Respondent

Judgment No. 10 - Penalty

1 On 29 April 2004 the Court found each of the respondents to be in contempt of the Court’s orders made on 8 December 2000 and on 1 June 2001 relating to the premises at 40 Coogee Bay Road, Coogee (“the premises”): see Randwick City Council v Athens and Anor (No. 7) [2004] NSWLEC 213. The Court has received and heard submissions on behalf of the applicant and the respondents relating to penalty.

Order of 8 December 2000

2 Order 3 made on 8 December 2000 (“the consent order”) provided as follows:-

3. The First and Second Respondents, their servants, agents or assigns remove the sliding glass doors to Garages 9 and 10 and restore them for the purpose of carparking pursuant to Order7 of the Application herein.

7. An order that the Respondents be ordered to remove sliding glass doors to Garages…

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.

Continue reading Randwick City Council v Athens (No. 10)

Details

AGLC: Randwick City Council v Athens (No. 10) [2004] NSWLEC 332
Case: [2004] NSWLEC 332
Decision Date: 06/04/2004

CaseChat Overview and Summary

In the case of Randwick City Council v Athens and Anor (No. 10), the Land and Environment Court of New South Wales addressed the issue of penalties imposed on Peta Athens and Athens Holdings Pty Limited for their contempt of court orders. The respondents were found to have breached court orders concerning the restoration of garages for car parking and the prohibition of using the premises for backpacker accommodation. The court had to decide on the appropriate penalties for these breaches.

The court emphasised the importance of strict compliance with court orders, stating that the duty to observe these orders is paramount. The court noted that while the breaches did not warrant a custodial sentence, the penalties imposed must reflect the seriousness of the breaches and deter future non-compliance. The court considered various mitigating factors presented by the respondents, such as the lack of injury or loss caused by the breaches, the absence of prior convictions, and the attempts by the respondents to comply with the orders. However, the court found that the respondents' actions were in direct defiance of the court's orders and that they had endeavoured to circumvent the court's directions.

The court assessed the penalties based on the totality principle, which takes into account all factors presented, including the respondents' submissions and the seriousness of the breaches. The court imposed fines of $20,000 on the first respondent and $10,000 on the second respondent for the breach of the order made on 8 December 2000, and $30,000 on the first respondent and $15,000 on the second respondent for the breach of the order made on 1 June 2001. Additionally, the court imposed a continuing daily penalty of $500 for any further breach of the December 2000 order.

The court also ordered the respondents to pay the applicant's costs of the proceedings, with the first respondent bearing two-thirds of the costs and the second respondent one-third. The court concluded that the penalties imposed were sufficient to address the breaches and to deter future non-compliance with court orders.

Orders