Strathfield Municipal Council v Malass

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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

  1. 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.

  2. Sarah Malass pleaded guilty to the charges on 1 August 2022, and a hearing on penalty proceeded on 12…

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Details
Case
[2022] NSWLEC 132
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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