Ashfield Municipal Council v Stavitsky

Tzavellas v Canterbury City Council (1999) 105 LGERA 262; CASES CITED: Witham v Holloway (1995) 183 CLR 525

DATES OF HEARING: 28/04/2005, 20/06/2005 EX TEMPORE JUDGMENT DATE : 06/20/2005

APPLICANT J Blunden (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Houston Dearn O'Connor

RESPONDENT B White (agent - hearing 28/04/2005) Respondent in person (hearing 20/06/2005)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Cowdroy J: By notice of motion dated 21 December 2004 ("the motion") Ashfield Municipal Council ("the Council") seeks an order that the respondent ("Mr Stavitsky") is guilty of contempt of this Court for failing to comply with orders made on 8 July 2004 ("the orders"). The orders relevantly provided:- 1. On or before 28 July 2004 the Respondent shall obtain an independent quotation for the clean up of the rear yard of the premises, 12 Chapman Street, Summer Hill being Lot 9, Section B in DP 482 (the subject premises) including the removal of:- i. all newspapers in the outside toilet, garage and outside lean to next to the toilet; ii. all perished, decomposing and putrefying food waste, including food waste in plastic bags and various containers; iii. all food waste or matter that results in offensive odours or any dead vegetative material which is likely to become a harbourage for rubbish or vermin; iv. all liquid waste. and provide a copy of the quotation to the Applicant Council. 2. By 8 August 2004 the Respondent shall have carried out the removal of:- i. all newspapers in the outside toilet, garage and outside lean to next to the toilet; ii. all perished, decomposing and putrefying food waste, including food waste in plastic bags and various containers; iii. all food waste or matter that results in offensive odours or any dead vegetative material which is likely to become a harbourage for rubbish or vermin; iv. all liquid waste. from the subject premises. 3. Should the Respondent not have complied with Order 2 within the time specified the Respondent shall permit the Applicant Council to enter the subject premises and the Applicant Council shall undertake the removal of:- i. all newspapers in the outside toilet, garage and outside lean to next to the toilet; ii. all perished, decomposing and putrefying food waste, including food waste in plastic bags and various containers; iii. all food waste or matter that results in offensive odours or any dead vegetative material which is likely to become a harbourage for rubbish or vermin; iv. all liquid waste. from the subject premises.

7. The Respondent shall permit an Environmental Health Officer employed by the Applicant Council to enter upon the subject premises and undertake an inspection on the first Monday of March, July, September and December in every year.

9. In the event further cleanup work is required at the subject premises then the Applicant Council may give a Notice of Intent to Give an Order and Draft Orders pursuant to section 132 of the Local Government Act to the Respondent. The Respondent shall be allowed fourteen (14) days in which to make representations to the Applicant Council. If no representations are made, the Applicant Council may give an Order or Orders pursuant to section 124 of the Local Government Act 1993. The Orders shall allow the Respondent fourteen (14) days in which to comply with the Orders.

10. Should the Respondent not comply with the Orders given by the Applicant Council, as set out in Order 9, the Respondent shall permit the Applicant Council to enter the subject premises and undertake the requirements of the Order or Orders given.

12. The Respondent shall be liable for all the Applicant Council's expenses associated with the removal of materials from the subject premises pursuant to Order 3 and Order 10. Such liability to be a charge on the title of the subject premises secured by way of a registered first mortgage thereover in favour of the Applicant. A Certificate of such expenses signed by the General Manager for the time being of the Applicant shall be final and conclusive as to the amount thereof.

13. The Respondent shall forthwith execute the mortgage referred to in Order 12 and at the same time produce the certificate of title for the subject premises and discharge of mortgage no. M274758 to the Applicant Council. 2 The proceedings relate to Mr Stavitsky's residence at 12 Chapman Street, Summer Hill ("the premises"). Mr Stavitsky is a man of advanced years who lives by himself at the premises. Over the course of many years, he has accumulated rubbish on the premises which has led to Council taking a number of actions in an attempt to have the premises remediated. The evidence suggests that Mr Stavitsky has felt victimised by the Council and relations between them have deteriorated.

3 The hearing of the motion for contempt took place on 28 April 2005. In support of the motion the Council relied upon evidence of Simon Teng, an Environmental Health Officer of the Council and Heather Louise Fagan. Their evidence establishes that Mr Stavitsky did not clean up his premises as required by the orders. Photographs tendered by the Council show accumulations of rubbish, including newspapers, decomposing and putrefying food waste and other debris including liquid waste remained on the premises. The evidence also establishes that Mr Stavitsky refused entry to the Council and its contractors to clean up the premises as required by order 3, and did not provide the certificate of title and other documents referred to in order 13.

4 On 28 April 2005 Mr Stavitsky was present in Court and although not legally represented, his friend namely Mr White sought to explain to the Court the Mr Stavitsky's position. After consultation with Mr White Mr Stavitsky indicated that he would take steps to comply with the orders. Accordingly the hearing was adjourned to enable a clean up of the premises and the motion was re-listed for hearing. Today Miss Fagan gave evidence that the state of the premises was now acceptable to the Council.

5 Part 6 r 1 of the Land and Environment Court Rules 1996 adopts Pt 55 of the Supreme Court Rules 1970 ("SCR"). Part 55 SCR makes provision for proceedings to be instituted for contempt of court. The SCR have been made pursuant to s 123 of the Supreme Court Act 1970. Accordingly the Court has power to entertain this motion. The standard of proof in contempt cases is the criminal standard: see Witham v Holloway (1995) 183 CLR 525.

6 On 28 April 2005 Mr White suggested that because of Mr Stavitsky's age and mental condition, the Court was not the appropriate forum to resolve the dispute. The Court is mindful of the remarks of Mr White, but notes that there is no evidence to suggest that Mr Stavitsky did not understand the nature or requirements of the orders. He offered no valid reason for his failure to comply with the requirements of the orders, which were made by consent, and he was legally represented when the orders were made. Whilst Mr Stavitsky suggested that his former solicitor did not have sufficient time to spend with him, the Court does not accept that that is an adequate excuse. The Court is satisfied that a contempt of court has been established because of the respondent's failure to comply with the requirements of the orders.

7 The Court is mindful that Mr Stavitsky has now purged his contempt by remediating the premises. The Court also takes into account Mr Stavitsky's personal circumstances. Taking these matters into account, the Court, in the exercise of its discretion, considers that no penalty should be imposed upon Mr Stavitsky.

8 The Court is also asked by the Council to award costs. In this respect the Court is satisfied that Mr Stavitsky has caused the Council to incur expenditure by bringing these proceedings. Mr Stavitsky could have complied with the orders. His failure to do so has led to the result that the Council has incurred costs by bringing this motion. It is appropriate in the circumstances that the Council be compensated for those costs. As has previously been determined by this Court, impecuniosity on the part of a respondent is not a reason for declining to make an order for costs: see Tzavellas v Canterbury City Council (1999) 105 LGERA 262. The Court will, however, allow a period of one year to enable Mr Stavitsky to pay the costs.

9 For these reasons the Court will make the following orders: 1. The Court declares that the respondent is guilty of contempt of court for failing to comply with orders 1, 2, 3, 7 and 13 of the orders of this Court made on 8 July 2004. 2. The Court orders the respondent to pay the costs of the applicant of these proceedings. 3. Order 2 is suspended for a period of twelve months. 4. The exhibits be returned.

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