Randwick City Council v Athens (No. 9)

[2004] NSWLEC 331

Land and Environment Court

of New South Wales

CITATION:

Randwick City Council v Athens and Anor (No. 9) [2004] NSWLEC 331

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 :- admission of evidence

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

31/05/2004

EX TEMPORE
JUDGMENT DATE :

05/31/2004

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

31 May 2004

Randwick City Council

Applicant
v

Peta Athens

First Respondent

Athens Holding Pty Limited (ACN 001 166 552)

Second Respondent

Judgment No. 9 - affidavit

1 The applicant seeks to rely upon the affidavit of Alan Donald Graham sworn 26 May 2004. Reliance is placed upon the affidavit not for the purpose of establishing a further contempt of court, nor for the purpose of founding the ground for an application for a continuing daily penalty arising out of the breach which the Court has found in accordance with its judgment delivered on 29 April 2004. Rather, the affidavit is relied upon as demonstrating the degree of co-operation which the applicant has received relating to the use of the premises and compliance with the orders relating to the garages following delivery of the Court’s judgment.

2 Insofar as those matters touch upon the conduct of the respondents, the Court determines that those matters could be of relevance. Paras 1 to 12 are objected to, except for the first paragraph of para 4. Paras 13 to 30 are not objected to, subject to para 27. The content of those paragraphs relates to a visit that was made to the subject premises and inspections which were allowed. The respondents do not object to those paragraphs.

3 To treat those paragraphs in isolation without regard to the foregoing paragraphs, that is paras 1 to 12, could result in an artificial portrayal of the events that have taken place between the applicant and the respondents relating to those inspections. Paras 1 to 12 relate to attempts that were made to gain inspection. Paras 13 and onwards to para 30 relate to the actual inspection. If the respondents wish paras 13 to 30 to be included for the purpose of demonstrating cooperation, it only follows as a matter of fairness that paras 1 to 12 should be allowed also so that the applicant can make any submission it wishes to, to demonstrate to the contrary.

4 Accordingly, the Court will admit paras 1 to 12, 13 to 30 except para 27.

5 Para 27 relates to a conversation between the respondents’ solicitor with Mr Graham. It concerns production of the registers of the premises. Insofar as the solicitor is the agent of the respondent and such conduct can be attributed to the respondents through their solicitor, the Court will allow para 27.