Randwick City Council v Athens (No. 2)

[2004] NSWLEC 48

Land and Environment Court

of New South Wales

CITATION:

Randwick City Council v Athens and Anor (No. 2) [2004] NSWLEC 48

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 :- service of affidavits beyond date fixed by Court direction - whether affidavits should be admitted as evidence.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

28/01/2004

EX TEMPORE
JUDGMENT DATE :

01/28/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Thompson (Barrister)

SOLICITORS
Bowen & Gerathy

RESPONDENT
Mr M. Ramage QC

SOLICITORS
Levitt Robinson Solicitors and Associates

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40097 of 2000

Cowdroy J

28 January 2004

Randwick City Council

Applicant
v

Peta Athens

First Respondent

Athens Holding Pty Limited (ACN 001 166 552)

Second Respondent

Judgment [No. 2 Interlocutory]

Introduction

1 Objection has been taken by the contemnors to two affidavits of Ajoy Ghosh, the first sworn 7 January 2004, the second sworn 22 January 2004. The objection is made upon the ground that a direction was made that the prosecutor file and serve any additional affidavits in this proceedings by 21 November 2003.

2 The affidavit of Mr Ghosh sworn 7 January 2004 was received by the alleged contemnors’ solicitor prior to 14 January 2004. The alleged contemnors are represented by Levitt Robinson Solicitors. On 14 January 2004 Mr Steven Kaouna, an associate in the Commercial Litigation Group of that firm wrote to Bowen and Gerathy, solicitors for the prosecutor and referred to the affidavits of the prosecutor’s witnesses including Mr Ghosh’s affidavit. The letter stated:-

We assume that this is the only evidence which you will be relying upon at the hearing of this matter.

No objection was taken in that letter to the fact that Mr Ghosh’s affidavit was served after the date fixed by the direction. Accordingly, the Court will allow the affidavit of Mr Ghosh sworn 7 January 2004 subject to specific objections in respect of which the Court will later rule.

3 With respect to the second affidavit of Mr Ghosh, Mr Ramage of Senior Counsel who appears for the alleged contemnors, has said that it raises a new issue which he is not in a position to address. Bearing in mind that that affidavit was sworn only on 22 January 2004, the Court will not permit that affidavit. The Court notes that Mr Thompson for the prosecutor does not press that affidavit. Accordingly, that affidavit is disallowed.

4 Objection is also taken to two affidavits, namely that of Heather Maria Thompson sworn 20 January 2004 and Brett Gaulle sworn on 21 January 2004. The objection is made on the ground that the direction required any further affidavits to be provided by 21 November 2003. Mr Thompson has informed the Court that the deponents of each of those affidavits are strangers to the prosecutor and that their evidence is now contained in affidavits. Subject to hearing evidence of that fact the Court proposes to allow those affidavits since the written evidence will be of benefit to both parties. The alternative would be for those witnesses to give evidence orally which would be an inefficient procedure.