Waverley Council v Crystal Carwash Pty Limited and 2 Ors

[2011] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Crystal Carwash Pty Limited & 2 Ors [2011] NSWLEC 41

Hearing dates:

17 March 2011

Decision date:

17 March 2011

Before:

Sheahan J

Decision:

1.In these orders, "you" means Crystal Carwash Pty Ltd, Crystal Carwash Cafe Pty Ltd and Anthony Sahade and includes each of you and all of you.

2.(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

3.Until 5pm on 25 March 2011 you are not to communicate (other than through your legal representatives and/or acoustic expert) with any of the following witnesses or potential witnesses of the Applicant concerning the subject matter of these proceedings and you are not to threaten, intimidate or harass in any way any such witness or potential witness: John Robson, Neil Gross, Renzo Tonin, Catherine Morton, Eleonore Caso, Maxine Wickey and any staff of Lea Real Estate, Sally Taylor.

4.The balance of the motion filed in Court on 17 March 2011 is stood over to 10.30am on Friday 25 March 2011 before the Duty Judge.

5.Costs are reserved.

Catchwords:

Injunction: ex parte application - principles applied

Cases Cited:

Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788

Category:

Interlocutory applications

Parties:

Waverley Council (Applicant)
Crystal Carwash Pty Limited (First Respondent)
Crystal Carwash Caf Pty Limited (Second Respondent
Anthony Sahade (Third Respondent)

Representation:

Mr P Larkin with Mr S Nash (Applicant)
No Appearance (Respondents)
Sparke Helmore (Applicant)
Oliveri Lawyers (Respondents)

File Number(s):

40765 of 2010

Judgment

1. His Honour: Before me is an urgent ex parte application for an injunction to issue immediately to prohibit the Respondents from

(a)   communicating (other than through their legal representatives and/or their acoustic expert) with

and/or

(b)   threatening, intimidating, or harassing in any way

various listed witnesses or potential witnesses, concerning the subject matter of these proceedings.

1. More extensive orders are particularised (in Appendix 'B' to the Notice of Motion), with a view to their being made when the period of the interim injunction expires.

1. Those orders include the vacation of a one-day hearing currently fixed for 4 April 2011, and vacation of a series of orders and directions made on 3 March 2011 by Pain J.

1. Counsel for the Applicant Council notified Counsel for the Respondents of this application shortly before it was made and arranged to provide to him copies of the Notice of Motion and the four affidavits relied upon for the granting of this urgent relief.

1. The orders of 3 March 2011 bound the Respondents to permit acoustic measurement of background noise levels at premises in Bondi "in the absence of any carwash or other mechanical plant noise" on certain dates over last weekend at certain times, a central issue in the dispute between the acoustic experts being the level of background noise in the vicinity of a carwash facility.

1. Put shortly, the Council alleges that there was a degree of deliberate interference with the testing done by its expert over last weekend, and, more seriously, there was a communication between the expert and the Third Respondent on the Sunday, part of which that expert (Neil Lionel Gross, who is a frequent advisor on matters in this court and deposes to familiarity with his duties as an expert witness) interpreted as a clear threat to him and/or his family. Mr Gross has sworn a very detailed account of his experiences last weekend.

1. Counsel for the Respondents informed Counsel for the Council that he could not attend court on short notice today and was not really available to deal with the matter until Friday 25 March 2011.

1. It would appear that there is little authority on the making of orders such as are sought today but I am fortified by the judgment of Jacobson J in the Federal Court, to which Counsel drew my attention, in the 2005 case Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788; 64 IPR 18 especially at [58] and [66].

1. I am satisfied that the balance of convenience clearly favours the order being made granting the injunction; clearly no Respondent suffers damage by the court insisting upon regularisation of any communications with people who may be called upon to assist the court in determining the matter, so the court has not insisted upon the usual undertaking as to damages. The Council has not sought any order for its costs of today other than that the question be reserved.

1. Accordingly the orders of the court are:

(1)   In these orders, "you" means Crystal Carwash Pty Ltd, Crystal Carwash Cafe Pty Ltd and Anthony Sahade and includes each of you and all of you.

(2)   (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

(3)   (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

(4)   Until 5pm on 25 March 2011 you are not to communicate (other than through your legal representatives and/or acoustic expert) with any of the following witnesses or potential witnesses of the Applicant concerning the subject matter of these proceedings and you are not to threaten, intimidate or harass in any way any such witness or potential witness: John Robson, Neil Gross, Renzo Tonin, Catherine Morton, Eleonore Caso, Maxine Wickey and any staff of Lea Real Estate, Sally Taylor.

(5)   The balance of the motion filed in Court on 17 March 2011 is stood over to 10.30am on Friday 25 March 2011 before the Duty Judge.

(6)   Costs are reserved.

Decision last updated: 17 October 2011