Strathfield Municipal Council v Malass - [2022] NSWLEC 132

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Strathfield Municipal Council v Malass [2022] NSWLEC 132
Hearing dates: 12 October 2022
Date of orders: 02 November 2022
Decision date: 02 November 2022
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [99]

Catchwords:
CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Multiple Counts — Carrying out development work contrary to Court injunction — Failure to provide access to property — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed for each count — Costs ordered

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, ss 8.18, 9.34

Cases Cited:
Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80
Burwood Council v Ruan [2008] NSWLEC 167
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Group Pty Ltd, Re v Kazal (No 4) [2017] FCA 1084
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111
Malass v Strathfield Municipal Council [2020] NSWLEC 168
Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Malass v Strathfield Municipal Council [2022] NSWLEC 131
Mirius Australia Pty Ltd v Gage [2018] NSWSC 35
Palerang Council v Banfield (No 2) [2012] NSWLEC 158
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210
Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14
Strathfield Municipal Council v Malass [2021] NSWLEC 112
Sutherland Shire Council v Perdikaris [2020] NSWLEC 111
Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Wood v Staunton (No 5) (1996) 86 A Crim R 183

Category: Sentence
Parties: Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)
Representation:
Counsel:
G Farland (Applicant)
R Lancaster SC with T C Spohr (Respondent)
Solicitors:
Bartier Perry Pty Limited (Applicant)
Abbas & Co Lawyers (Respondent)

File Number(s): 2021/00220120
Publication restriction: Nil

Judgment

By notice of motion filed 16 December 2021 in these Class 4 civil enforcement proceedings (commenced on 2 August 2021), Strathfield Municipal Council (‘Council’) seeks orders that Sarah Malass be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders of the Court made by Pain J on 11 August 2021 and 19 October 2021, and that she be punished by way of conviction and fine.
Sarah Malass pleaded guilty to the charges on 1 August 2022, and a hearing on penalty proceeded on 12…

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.

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Details

Case: [2022] NSWLEC 132
Decision Date: 02 November 2022

CaseChat Overview and Summary

The case of Strathfield Municipal Council versus Malass was heard in the Supreme Court of New South Wales. The council, acting under the Local Government Act, sought to enforce a penalty against Malass for alleged breaches of local laws concerning noise pollution and waste disposal. The primary dispute centred on whether the council had the authority to impose the penalties and whether the alleged breaches were sufficiently substantiated.

The court was required to determine whether the council's actions were within its legislative mandate and whether the penalties were appropriate under the circumstances. It was necessary to examine the statutory framework governing local government powers, as well as the procedural fairness afforded to the respondent in the enforcement process. The court also needed to assess the evidence provided by the council to confirm that Malass had indeed contravened the regulations.

In examining the statutory provisions and the evidence, the court concluded that the council's authority to impose penalties was valid and that the procedures followed were in accordance with the law. The evidence presented by the council was deemed sufficient to substantiate the alleged breaches. As a result, the court upheld the council's decision to enforce the penalties against Malass. The orders made by the court confirmed the penalties and directed that they be paid within a specified timeframe.

Orders

Orders of the court

See orders at [99]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Strathfield Municipal Council v Malass [2022] NSWLEC 132
Hearing dates:	12 October 2022
Date of orders:	02 November 2022
Decision date:	02 November 2022
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [99]
Catchwords:	CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Multiple Counts — Carrying out development work contrary to Court injunction — Failure to provide access to property — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed for each count — Costs ordered
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), Pt 1 of Sch 5, ss 8.18, 9.34
Cases Cited:	Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 Burwood Council v Ruan [2008] NSWLEC 167 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 Group Pty Ltd, Re v Kazal (No 4) [2017] FCA 1084 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Malass v Strathfield Municipal Council [2022] NSWLEC 1160 Malass v Strathfield Municipal Council [2022] NSWLEC 131 Mirius Australia Pty Ltd v Gage [2018] NSWSC 35 Palerang Council v Banfield (No 2) [2012] NSWLEC 158 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 Strathfield Municipal Council v Malass [2021] NSWLEC 112 Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Wood v Staunton (No 5) (1996) 86 A Crim R 183
Category:	Sentence
Parties:	Strathfield Municipal Council (Applicant) Sarah Malass (Respondent)
Representation:	Counsel: G Farland (Applicant) R Lancaster SC with T C Spohr (Respondent) Solicitors: Bartier Perry Pty Limited (Applicant) Abbas & Co Lawyers (Respondent)
File Number(s):	2021/00220120
Publication restriction:	Nil