Warringah Council v. Phillip Franks

[1998] NSWLEC 104

Land and Environment Court

of New South Wales

CITATION:

Warringah Council v. Phillip Franks [1998] NSWLEC 104

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 67

CASES CITED:

Warringah Council v Franks and Ors, 19 May 1998, unreported).;
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12;
McIntyre v Perks (1987) 15 NSWLR 417

DATES OF HEARING:

24/08/98

EX TEMPORE
JUDGMENT DATE :

08/24/1998

LEGAL REPRESENTATIVES:

APPLICANT
Mr D P Wilson, Barrister
Wilshire Webb

RESPONDENT
Mr C J Leggat, Barrister
Roper & Steggall

JUDGMENT:

The proceedings before this Court today concern the punishment which this Court should impose in relation to the contempt of its orders that I have found in relation to Mr Phillip Franks and in relation to Mr Robert Antoun (see Warringah Council v Franks and Ors, 19 May 1998, unreported).

The Court has power to punish for contempt. Section 67 of the Land and Environment Court Act 1979 provides as follows:

"The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters -

...

(d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court;"

Part 55 r 13 of the Supreme Court Rules (which applies in this Court by virtue of pt 6 r 1 of the Land and Environment Court Rules 1996) provides that the punishment may be by way of committal to a correctional centre or by way of fine.

Those powers were noted, as Mr Leggat on behalf of the respondents correctly pointed out, in Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 at 22. It is, however, important to keep in mind the nature of the contempt which this Court is punishing today.

The contempt was a breach of an order of this Court. The Court ordered each of the respondents, Mr Franks and Mr Antoun, forthwith to cease carrying out earthworks, including the construction of a rock boulder sea wall. It is important to bear in mind that the Court is not punishing Mr Franks for failing to obtain development consent. Mr Franks has to face that still. The council has taken class 4 proceedings seeking to restrain a breach of the Environmental Planning and Assessment Act 1979. It may be a breach of that Act to have carried out this work without a development consent but that is not a matter with which I am concerned. I expressly make no comment about it other than to say that this is a case where the council obtained an interlocutory order to require the cessation of work and I found that the work continued.

I turn to Mr Franks first. Mr Wilson, for the council, has submitted that the Court can be satisfied, (to use a time honoured phrase) that Mr Franks' conduct was not casual, accidental or unintentional. I agree that the Court can be so satisfied. Mr Franks knew, as I found, that the council wanted the work to stop. He knew that because he had been told so by council officers and, although he had some doubt about the order, I have found that he ought to have known it was a court order and he ought to have stopped the work.

In Mr Franks favour I take into account a number of matters. I accept that there had been a history of storm damage in the Collaroy area. I accept that there had been a storm event on the weekend prior to the contempt event and that Mr Franks was acting, in effect, on the spur of the moment, in fact motivated by fear of consequences of the damage to his house. I accept also, as Mr Leggat has submitted, that Mr Franks thought that the order was something of a "try-on". As I said in my judgment on page 16, Mr Franks had a belief, which he expressed to the council officer, Mr Cook, that the whole matter was political, and that the council staff and their advisers were "liars".

Those things in some way explain Mr Franks' conduct. Their importance, however, is somewhat reduced by the fact that Mr Franks knew for a considerable number of years that there could have been damage to the property at the edge of the beach. He said in evidence, as Mr Wilson has pointed out, that his house was constructed on certain piers with that threat in mind. Mr Franks knew also and admitted in evidence that development consent was required. Accordingly, although he was acting in consequence of a particular storm event, he had had time to deal with a prospective storm event prior to these actions.

I also take into account Mr Franks' background. He swore an affidavit in which he explained that he had grown up in poor circumstances, that he left school at 13, has been working ever since and that he played first grade rugby league with Penrith, North Sydney and Wests. I could hardly have been surprised at Mr Franks' connection with rugby league in view of the fact that testimonial evidence in his favour was furnished from persons who are famous in rugby league circles - Mr Arthurson, Mr Gibson and Mr Fulton. He has worked hard, he has educated his children and he has a commitment to social matters. I also take into account what was said in the affidavits filed on his behalf as to his honesty, his hard working character and his good character. I take into account what was said by the deponents of the affidavits, each finding this incident not in character.

Mr Franks says that he is sorry. He said that on two occasions. He said it in an affidavit when the proceedings were first before me and he has said it again. I take into account that he is contrite in relation to the disobeying of an order of this Court.

Although I take all those matters into account, I emphasise that the punishment is to show that this Court's orders are important. They are of a serious nature and it is important in the system of justice that an order of the Court is treated with seriousness and that it is obeyed.

Taking into account all the matters that I have just enunciated I consider that the Court should impose a fine by way of punishment upon Mr Franks and that fine should be in the amount of $15,000.

I will deal with costs when I have dealt with the situation regarding Mr Antoun.

Mr Antoun's situation is similar in some ways yet different in other ways. Again, the nature of the contempt is important. It was a disobedience of an order which stipulated that work should cease. Mr Antoun kept working. His conduct in that regard was neither casual, accidental nor unintentional. However, Mr Antoun was the contractor. He was not the instigator of the work. It was Mr Franks' property, Mr Franks' contract, and Mr Franks' job. I take into account that Mr Antoun was in a difficult position. He had a belief that he had to make the site safe in order to comply with the Occupational Health and Safety Act. That belief was disabused by a conversation he had with Mr Hudson, the council's solicitor, and by the conversation he had with Mr Cook, the council officer. Both said, "You have to stop work". But he was in the situation where his boss, that is the person who had contracted with him to do the work, had not stopped the work. It was Mr Franks' job and as Mr Franks seemed to be keeping going with th

e work so did Mr Antoun. I think that these matters reflect a difficulty that Mr Antoun was in. Although I find that his conduct was neither casual, accidental nor unintentional, the explanation for his conduct carries some weight.

He also has references from a number of people to testify to his good character. I accept those references.

Mr Antoun is young. He is aged twenty-nine. He is single. He runs his own business. I understand from the affidavit of Mr Marshall, who is a licensed builder, that Mr Antoun carries out his business with skill and knowledge.

He also has expressed his contrition on two occasions, both in the proceedings before me previously and these proceedings. I accept that contrition.

I think, nevertheless, that, taking all these matters into account, the Court should, for the same reasons that go to the importance of the orders of this Court and the importance of obeying those orders, punish Mr Antoun's contempt by way of fine and the appropriate amount is $5,000.

I come now to the question of costs. It is appropriate that I exercise my discretion and order that the costs of the council be paid by the contemnors. The council has asked for indemnity costs. That means that the council wants an order that would indemnify it against all the costs it has incurred in relation to the contempt proceedings, not just party and party costs which cover it for only some of those costs. Mr Wilson has directed my attention to the decision of the Court of Appeal in McIntyre v Perks (1987) 15 NSWLR 417 where there were some comments made about the exercise of discretion to award costs in cases of contempt and in particular I note the passages from the judgment of Rogers AJA (at 436) about indemnity costs in cases in contempt proceedings where the result is the vindication of the Court's orders.

Nonetheless, I find no reason for indemnity costs to be awarded in this case. It is appropriate that I exercise my discretion and order costs to be paid but I order them on a party and party basis.

I have considered who should pay those costs and the result of my consideration is that they should be shared by Mr Franks and Mr Antoun in the proportion in which the fines will be imposed, that is, Mr Franks should pay three quarters of the council's cost and Mr Antoun should pay one quarter.

I propose then to make orders in accordance with the matters that I have just said.

[Counsel addressed on time to pay and the council's possible entitlement to a moiety of the fine].

My formal orders are as follows. In relation to Mr Phillip Franks, the first respondent in these proceedings, I make the following orders:

1. I impose as punishment for the contempt that I have found a fine of $15,000.

2. I order that the fine be paid to the Registrar of this Court within six months of today's date.

3. I order Mr Franks to pay three quarters of the costs of the council in relation to the contempt proceedings as agreed or as assessed.

In relation to Mr Robert Antoun I make the following formal orders:

1. I impose as punishment for the contempt that I have found a fine of $5,000.

2. I order that the fine be paid to the Registrar of this Court within six months of today's date.

3. I order Mr Antoun to pay one quarter of the costs of the council in relation to the contempt proceedings as agreed or as assessed.

I direct that the exhibits may be returned.