Tovehead v Freeman

[2003] NTCA 10

Tovehead & Anor v Freeman [2003] NTCA 10

PARTIES:	TOVEHEAD PTY LTD
AND
BRANIR PTY LTD
v
FREEMAN, Kevin
TITLE OF COURT:	COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:	APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:	AP 24 2002 (20211055)
DELIVERED:	15 April 2003
HEARING DATES:	17 and 18 March 2003
JUDGMENT OF:	MARTIN CJ, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellants:	J Reeves QC, I Meier
Respondent:	D Robinson, M Smith

Solicitors:

Appellants:	Cridlands
Respondent:	Ward Keller
Judgment category classification:	C
Judgment ID Number:	mar0314
Number of pages:	21
mar0314
IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Tovehead & Anor v Freeman [2003] NTCA

No. AP 24 of 2002 (20211055)

BETWEEN:

TOVEHEAD PTY LTD and BRANIR

PTY LTD

Appellants

AND:

KEVIN FREEMAN

Respondent

CORAM:  MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 15 April 2003)

MARTIN CJ:

1. This is an application for leave to appeal from the judgment of the Supreme

   Court wherein his Honour dismissed the appellant’s application that the

   respondent be punished for contempt. The contempt alleged was that the

   respondent had breached orders, made by consent, that he be restrained from

   entering or using any part of Tipperary Station other than:

   "those parts of Tipperary Station known as ‘the Sanctuary’ and ‘the

   Sanctuary area’ (being those areas marked as stages I -IV and

   "Rhino/Hippo" and "Pygmy/Hippo/Tapir" on the plan attached to the
   summons dated 23 July 2002) or the roads necessary to be used for
   reasonable access thereto."

2. A copy of the plan is annexed to these reasons. Each of the areas referred to

   in parenthesis in the order is marked, as is an area marked "Tipperary

   Station Complex". No issue has been raised going to the boundaries of any

   of those various areas as delineated. No ambiguity is suggested to arise

   from the plan.

3. His Honour dismissed the summons after consideration of a no case

   submission made on behalf of the respondent at the close of the appellants’

   case. In so doing his Honour relied upon ambiguity in the terms of the order

   which it was alleged had been breached. His only reference to facts, other

   than the order, was to the allegations of breach, being entry by the

   respondent upon areas on Tipperary Station other than the areas described

   (incorporating the plan). Although not expressly referred to, there was

   attached to an affidavit in support of the application a plan identical to that

   attached to the summons upon which was identified the places where the

   alleged breaches occurred. They lie within the boundaries of the area

   marked "Tipperary Station Complex".

4. At the close of the appellants’ case, senior counsel for the respondent,

   Mr Southwood QC, submitted that the no case to answer issue should be

   determined before his client proceeded. His Honour did not require the

   respondent to go into evidence at that stage. The question of whether the

   respondent should be put to his election in regard to going into evidence…