Randwick City Council v Athens (No 11)

[2004] NSWLEC 771

Land and Environment Court

of New South Wales

CITATION:	Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771 revised - 17/08/2005
PARTIES:	Randwick City Council Peta Athens Athens Holdings Pty Limited (ACN 001 166 552)
FILE NUMBER(S):	40097 of 2000
CORAM:	Cowdroy J
KEY ISSUES:	Practice and Procedure :- hearsay evidence - admissibility - civil proceedings - whether makers of statement unavailable - whether notice required
LEGISLATION CITED:	Evidence Act 1995 ss 63(2), 65, 67, 135
CASES CITED:	Australasian Meat Industries Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; Australian Consolidated Press v Morgan and Anor (1965) 112 CLR 483; O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59; Witham v Holloway (1995) 183 CLR 525
DATES OF HEARING:	28/01/2004, 29/01/2004, 30/01/2004
EX TEMPORE JUDGMENT DATE :	01/30/2004
LEGAL REPRESENTATIVES:	APPLICANT A Thompson SOLICITOR Bowen & Gerathy RESPONDENT M Ramage QC SOLICITORS Levitt Robinson Solicitors and Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

30 January 2004

40097 of 2000

RANDWICK CITY COUNCIL
Applicant

PETA ATHENS
First Respondent

ATHENS HOLDINGS PTY LIMITED
Second Respondent

JUDGMENT No 11

1 Cowdroy J: As I have already said, these proceedings are not criminal. This is clearly established by authority, the clearest statement of which is contained in O’Shea v O’Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59 at 62, where Lord Justice Cotton said:

The present proceeding is for a contempt of Court. Of course, there are many contempts of Court that are not of a criminal nature; for instance, where a man does not obey an order of the Court made in some civil proceeding, to do or to abstain from doing something – as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt – that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it.

2 Similar observations have been made by the High Court of Australia in Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 497-8, in Australasian Meat Industries Employees’ Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 and, most recently, in Witham v Holloway (1995) 183 CLR 525. Accordingly, s 65 of the Evidence Act 1995 has no application to the current question, that is, whether certain passages contained in para 5 of Mr David Mulcahy’s affidavit sworn 1 September 2003 are admissible.

3 For the purpose of ruling on this question, the Court has read the content of the challenged conversations. They are in a small compass. It is apparent, not only from the content of the conversation but also from other evidence already led in these proceedings, that it is not practical to call the persons who made the actual statements. In these circumstances, the Court considers that s 63(2) of the Evidence Act has application.

4 The Court is mindful that the respondents have not been specifically notified, as required by s 67 of the Evidence Act, of the intention to call such evidence. The Court notes that s 67 of the Evidence Act does not constitute an absolute prohibition. As the statements were contained in an affidavit which was served approximately four months ago upon the respondents, the Court is satisfied that there is no injustice by reason of the failure to give express notice. Accordingly, the Court considers that the provision of the affidavit constitutes sufficient notice.

5 The Court is also minded of s 135 of the Evidence Act and considers that such evidence would not be unfairly prejudicial to the respondents or cause a waste of time.

6 For these reasons, the Court proposes to admit the para 5 of the affidavit of David Mulcahy.