Warringah Council v Peter Welsh - [1998] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION: Warringah Council v. Peter Welsh [1998] NSWLEC 123

PARTIES:
APPLICANT
Warringah Council
FIRST RESPONDENT
Phillip Franks
SECOND RESPONDENT
Peter Welsh
THIRD RESPONDENT
Robert Antoun

FILE NUMBER(S): 40123 of 1997

CORAM: Pearlman J

KEY ISSUES: :-

LEGISLATION CITED: Land and Environment Court Act 1979 s 5(2)
Land and Environment Court Rules 1996 pt 15 r 2(1), pt 2 r 1,pt 1 r 5(2)
Supreme Court Rules 1970 pt 42 r 8

CASES CITED: Drummoyne Municipal Council v Lewis and Ors (1974) 1 NSWLR 655;
Rogerson v Tchia and Ors (1995) 123 FLR 126;
Foley v Herald-Sun T.V. Pty Ltd and Anor (1981) VR 315;
High Court in Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING: 23/03/98, 24/03/98

DATE OF JUDGMENT:
05/19/1998

LEGAL REPRESENTATIVES:
APPLICANT
Mr D P Wilson, Barrister
Wilshire Webb
RESPONDENT
Mr C J Leggat, Barrister
David Trodden & Associates

JUDGMENT:

These are contempt proceedings. By notice of motion, the applicant, Warringah Council, seeks an order from the Court finding both the first respondent, Mr Phillip Franks, and the third respondent, Mr Robert Antoun, guilty of contempt of orders of the Court.

Initially, the council sought an order that the second respondent, Mr Peter Welsh, also be found guilty of contempt, but that proceeding was ultimately abandoned by the council.

The statement of charge is identical in all material respects in the case of each respondent. It is sufficient if I set out the statement of charge in relation to Mr Franks. It reads as follows

"The First Respondent/Contemnor did not comply with Order 1 of the Orders made by the Court on Friday 23 May 1997 which provided:-

`On the Application of Warringah Council the Court Orders each of the following persons:-

(a) Phillip Franks

(b) Peter Welsh

by themselves their servants, agents and contractors to forthwith cease carrying out earthworks including the construction of a rock boulder seawall at Lots 1 and 2 DP853885 known as 2 and 2A Goodwin Street Narrabeen and on the Crown Reserve adjoining these properties to the east until further order.'

in that the First Respondent/Contemnor, after service of the Order on him at approximately 9:10am on 24 May 1997,:-

(a) did not by himself and his servants, agents and contractors forthwith cease the carrying out of the earthworks including the construction of the rock boulder seawall on the lands referred to in the Order, and

(b) continued by himself and his servants, agents and contractors to carry out earthworks including the construction of the rock boulder seawall on the lands referred to in the Order until approximately 4:30pm on Saturday 24 May 1997."

Both Mr Franks and Mr Antoun (to whom I will refer collectively as "the respondents") have pleaded not guilty to the charge.

The circumstances in which the order was issued

The evidence of Mr A M Hudson, the council's solicitor, as to the making of the order is unchallenged.

Mr Hudson telephoned an officer…

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.

Continue reading Warringah Council v Peter Welsh

Details

AGLC: Warringah Council v Peter Welsh [1998] NSWLEC 123
Case: [1998] NSWLEC 123
Decision Date: 05/19/1998

CaseChat Overview and Summary

The case of Warringah Council v Peter Welsh was heard in the Land and Environment Court of New South Wales. The applicant, Warringah Council, sought an order finding Phillip Franks and Robert Antoun guilty of contempt of court for disobeying an order to cease earthworks, including the construction of a rock boulder seawall, on certain properties. The respondents pleaded not guilty. The key issues included whether the handwritten document served on the respondents constituted a valid court order, whether proper notice was given, and whether the respondents had an intention to disobey the order. The court found that the handwritten document was a valid court order, despite not being sealed with the court's seal, as it was served under special circumstances. The court also found that both respondents had proper notice of the order and that they intended to disobey it. Consequently, both respondents were found guilty of contempt of court.

Orders