Snowy River Shire Council v O'Neill

[2000] NSWLEC 254

Land and Environment Court

of New South Wales

CITATION:

Snowy River Shire Council v O'Neill [2000] NSWLEC 254

PARTIES:

APPLICANT:
Snowy River Shire Council

RESPONDENT:
Patrick Anthony O'Neill

FILE NUMBER(S):

40116 of 1997

CORAM:

Talbot J

KEY ISSUES:

Contempt :- adjourned - no appearance by respondent

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

14/11/2000

EX TEMPORE
JUDGMENT DATE :

11/14/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Bradbury (Solicitor)

SOLICITORS:
Minter Ellison

RESPONDENT:
No appearance

SOLICITORS:
N/A

JUDGMENT:

IN THE LAND AND Matter No. 40116 of 1997
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 14 November, 2000

Snowy River Shire Council
Applicant

v
Patrick Anthony O’Neill

Respondent

REASONS FOR JUDGMENT


1. When the matter was called for hearing this morning the respondent, Patrick Anthony O’Neill, did not appear following his name being called outside the courtroom.

2. Mr Bradbury appears for the applicant council and indicates that the council is ready to proceed on the notice of motion. The council seeks orders whereby the respondent be found in contempt of the orders made by Lloyd J and that he be committed to prison or fined or both. Mr Bradbury has informed the Court that the council will not ultimately submit that the respondent be committed to prison but rather a fine be imposed by way of a monetary penalty together with a daily recurring penalty if compliance with the Court’s orders remains outstanding after a further period of some months. Whatever basis the council seeks to deal with the matter, the potential consequences of the respondent failing to comply with the Court’s solemn orders are serious.

3. When the notice of motion was first returned before the registrar on 17 August 2000 the respondent appeared in person. Directions were made. Mr Bradbury has produced a letter addressed to the respondent which reminded him of the terms of the directions made by the registrar on that occasion.

4. At the next callover on 12 September 2000 the respondent did not appear. The following day Mr Bradbury wrote a letter to the defendant advising him that the matter had been listed for further mention before the registrar on 20 September 2000 and noting that the council would be seeking a date for hearing at that time.

5. The respondent again failed to appear on 20 September. The council requested the matter be set down for hearing. The registrar appointed today and tomorrow for that hearing. Mr Bradbury tells the Court that by letter dated 21 September 2000 he again informed Mr O’Neill and confirmed that the proceedings were listed for hearing.

6. At the request of the Court, Mr Bradbury contacted Mr O’Neill this morning just before 11 o’clock. Mr Bradbury has reported the outcome of that telephone conversation. Generally, Mr O’Neill’s explanation appears to be that he does not appear today because he has not received any formal notification from the Court that he is required to be here.

7. That is as it may be. The only factor that might weigh in Mr O’Neill’s favour in that respect is that unfortunately the letters which Mr Bradbury so carefully sent to the respondent do not specifically notify him that Mr Bradbury had been directed by the Court to advise him of the further hearing dates.

8. The matter that concerns the Court particularly, however, is that it is informed the alleged contempt, that is non-compliance with the orders, is continuing. So far as Mr Bradbury is instructed, there is no indication on the part of the respondent that would suggest he proposes to desist from breaching the orders in the immediate future.

9. Mr O’Neill has caused a document to be filed with the Court that, in staccato fashion, identifies the argument that he presumably proposes to bring to the Court’s attention during any hearing.

10. The Court is particularly concerned to have Mr O’Neill present so that there can be no misunderstanding about the nature of the case brought by the council and so that he is given an opportunity to meet it.

11. Furthermore, and perhaps more importantly, the Court itself is particularly anxious to hear the respondent’s explanation for failing to comply with the orders and then to deal with that evidence, or a submission as the case may be, on its merits.

12. The non-compliance with the orders of the Court, as I have already said, is a serious allegation and if established can bring severe penalties to the respondent.

13. In the circumstances where, on the information presently available, there appears to be no immediate prospect that the orders will be complied with, it can be expected the Court will intervene and make it clear to the respondent what his responsibilities are and the risk he is taking by failing to comply.

14. I therefore propose to vacate the hearing dates of today and tomorrow and adjourn the proceedings to a further date convenient to the Court. Furthermore, I will direct the registrar to formally notify Mr O’Neill by a process that is acceptable to the registrar to ensure that the appropriate information is brought to his attention, in particular, that the hearing will take place on the adjourned date and that if he wishes to make submissions or rely on any evidence it is incumbent upon Mr O’Neill to be in attendance in person or to be represented by his legal representative on that day.

15. In the circumstances, the costs of today will be reserved. However, I have reserved the question of costs only to give Mr O’Neill the opportunity to make submissions in relation to any reasonable explanation that he might care to give as to why he elected not to attend today, notwithstanding clear and concise notice given to him that the hearing was on today. It must be expected that the Court, if it hears nothing further from Mr O’Neill, is most likely to exercise its discretion in favour of the council and award costs against him including such costs as might have been thrown away and wasted by the appearance of the council’s solicitor and witnesses today.

16. I also propose to direct that a transcript of these reasons be taken out and forwarded to Mr O’Neill so that he can be in no doubt about the circumstances and the difficulty he might face if he fails to appear on the next occasion.

17. The proceedings are adjourned to a date to be fixed by the registrar, for one day plus. I direct the registrar to give the notice referred to in these reasons. The question of costs thrown away as a consequence of the adjournment of the proceedings today and tomorrow is reserved.

18. BRADBURY: Your Honour, can I just clarify one thing in relation to obtaining the further hearing date, is the matter going back into the callover list now or …

19. HIS HONOUR: No, no, I’m sending it down now to the registrar and if you care to attend at the registry, Mr Bradbury, you might have the benefit of knowing what the date is before you leave.

20. BRADBURY: Thank you, your Honour.

21. HIS HONOUR: What influence you bring to bear on that date is a matter for you but I’m sure the list clerk or the registrar can assist you by informing you what the date is likely to be. It is not necessary for the matter to come back before me, I am certainly not part heard.

22. Stood over to a date to be fixed.