Byron Shire Council v Hutton & [2003] NSWLEC 157 | Case summary

1 May 2003 BYRON SHIRE COUNCIL Applicant v EDWARD JOHN HUTTON First Respondent THOMAS HILTON MOONEY Second Respondent CATHRYN ANNE MOONEY Third Respondent FINTIDE PTY LIMITED ACN 003 931 744 Fourth Respondent EXTEMPORE JUDGMENT HIS HONOUR: 1 The applicant, Byron Shire Council (hereinafter "the council"), has brought eight notices of motion for contempt against the first respondent, Edward John Hutton. The motions allege that the first respondent on eight separate occasions has disobeyed orders of the Court which were made on 2 September 2002. The statements of charge attached to each notice of motion for contempt are identical, excepting that of 23 January 2003. However, the additional distinguishing features of that particular charge were struck out at the request of Mr T Howard, appearing for the council, leaving in effect a statement of charge identical in substance to the other statements of charge. Given this alteration, all eight statements of charge, in respect to an alleged contempt said to have occurred on 11 December 2002, 14 December 2002, 18 December 2002 and 19 December 2002, 21 December 2002, 22 December 2002, 23 January 2003 and 24 January 2003, are as follows: 1. On 2 September 2002, the Court made orders in these proceedings in the form attached hereto and marked as Annexure 'A' . 2. On [the relevant date], the First Respondent disobeyed order No. 2 referred to in paragraph 1 above. Particulars 2.1 The First Respondent by himself his servants or agents used, suffered or permitted to be used the side path area adjacent to Shop No. 1 located on the ground floor of the building erected on Lot 4, section 33, DP 758207 (No. 95) Jonson Street, Byron Bay, NSW (the 'side path area') for the placement of tables, chairs and the like; 2.2 The use of the side path area for the placement of tables chairs and the like was not in accordance with the conditions of development consent No. 99/0936 dated 15 May 2000 as modified on 4 January 2001 pursuant to s 96 of the Environmental Planning and Assessment Act, 1979 (NSW). 3. By reason of the matters set out above the First Respondent committed contempt of court on [the relevant date] . 2 The relevant facts may be briefly described. The first respondent, trading as OZ Bakehouse, is the lessee of premises known as shops 1 and 2 in a building at No. 95 Johnson Street, Byron Bay. That lease commenced on 14 October 2000 and is due to expire on 13 October 2005. The terms of the lease require the first respondent to pay to the lessor an annual rent of $106,600. Clause 22 of the lease requires the lessor to comply with the requirements of any public statutory authority, if it is the lessor's responsibility to do so. That provision, however, does not absolve the lessee from complying with any requirements imposed upon him by any statutory or other authority. Clause 29 of the lease expressly requires the lessee to comply with the terms of any statute affecting the shop. 3 On 15 May 2000 the council granted conditional development consent for the construction and use of the subject property. On 4 January 2001, the council granted a modification to that development consent which permitted the use of the forecourt area outside shops 1 and 2 for outdoor seating. It seems that the shops have, in addition to a forecourt area, a side area or passageway giving access to a car parking area at the rear of those shops. 4 On 17 June 2002 the council commenced proceedings in class 4 of the Court's jurisdiction seeking declarations to the effect that the respondents were using shops 1 and 2 for outdoor seating in a manner which was in breach of the conditions of the development consent. 5 On 2 September 2002 orders were made by consent in those proceedings. It is order 2 of those orders which is said to have been infringed subsequently by the first respondent. That order ( set out in annexure 'A' to the statements of charge) is as follows: 2. The First Respondent by himself, his servants and agents be restrained from using, suffering of permitting to be used, the side path area adjacent to shop No. 1 located on the ground floor of the building erected on the premises Lot 4, Section 33, DP 758207 (No. 95) Johnson Street, Byron Bay, for the placement of any structure, matter or thing other than in accordance with conditions of Development Consent No. 99/0936 dated 15 May 2000 as modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979, (NSW) on 4 January 2001. 6 On 3 December 2002 the council's solicitors wrote to the first respondent advising him that they had been instructed that he had disobeyed the terms of, in particular, Court's order No. 2 dated 2 September 2002 and advising him that the council, if the letter was ignored, would be left with no option other than to take contempt proceedings against him. That letter was hand delivered to the first respondent on 6 December 2002, together with a sealed copy of the orders of the Court which bore a note, naming the first respondent, in these terms: If you neglect to obey these orders within the time specified or neglect to obey these orders you will be liable to imprisonment, fine or sequestration of property. 7 There is evidence before me which shows that the premises were being used in breach of order No. 2 made by the Court on 2 September on a number of occasions, namely on 11 December 2002, 14 December 2002, 18 December 2002, 19 December 2003, 21 December 2002, 22 December 2002, 23 January 2003 and on 24 January 2003. It is in relation to each of these breaches that each notice of motion for contempt refers. 8 On 1 March 2003 the first respondent was served personally with the eight notices of motion for contempt and statements of charge and four affidavits in support of the motions. At the same time, the first respondent was given a letter from the solicitors for the council advising him that this was a serious matter and may result in the Court finding him guilty of contempt. 9 I am satisfied that on 23 April 2003 the first respondent was also served personally with the remaining affidavits relied upon by the applicant in these proceedings. I should record the fact that the first respondent has not appeared today, despite being represented when the motions for contempt were set down for hearing, so that he must be taken to be aware that the motions would be heard today. 10 I should also record the fact that the Court was telephoned by the first respondent yesterday. He spoke to a person in the Registry. He said that he had been unable to obtain legal representation for the hearing commencing today. It was suggested to him that he would need to attend himself. He said that this was not possible. It was suggested to him that it would be in his best interests to attend as the Judge may decide to proceed with the hearing in his absence. He said that he would see what he could do. Since the respondent has been aware for some considerable time that the motions were set down for hearing today and since the Court has set aside the day to hear them, I proceeded ex parte on the application of Mr Howard. 11 It is clear that the charge of contempt in each case is proved to the criminal standard. As to the seriousness of the charge and the reason for the council's action in bringing these motions, I have been invited to look at the condition of consent imposing a contribution under s 94 of the Environmental Planning and Assessment Act 1979 in the development consent, namely a contribution of $51,460 for the shortfall of four car parking spaces at the development. One of the reasons for the limitation on seating is that there is an insufficient number of car parking spaces. In addition to the limitation on seating accommodation at these premises for customers, there is a problem with the additional sewerage load that would be imposed upon the council's sewerage system which is at present operating at or near capacity. That is to say the breach of the conditions of development consent and of the Court's orders has other environmental consequences. 12 Having found the motions for contempt proved and having referred to the consequences of the breach of the Court's orders, it is necessary to then consider what penalty should be imposed. A breach of the Court's orders is something to be taken seriously. I refer to G J Borrie and N V Lowe's Law of Contempt, 2nd ed, London, Butterworths, 1983, at p. 3: If a Court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. 13 Here the contempt seems to be contumacious and deliberate and has been done despite the fact that the respondent had been previously warned that he was, by doing what he was doing, acting in contempt of the Court's orders. The behaviour of the first respondent is an attack upon the integrity of the Court and would degrade the administration of justice. 14 In the past, for such contempt the courts have imposed substantial and even very substantial fines. The purpose of a fine is to show that the Court's orders are important; that they are of a serious nature. It is vitally important in the system of justice that an order of the Court be treated with seriousness and that it is obeyed. 15 In my opinion, therefore, a fine of some substance should be imposed to serve as both punishment and as a deterrent. I propose to impose a fine of $40,000 in total, being a fine of $5,000 in respect of each charge. 16 The formal orders of the Court on each motion for contempt are as follows: 1. The first respondent is found guilty of the charge of contempt as set out in the statement of charge. 2. The first respondent is fined the sum of $5,000. 3. The first respondent must pay the applicant's costs. 4. The exhibits may be returned.

Byron Shire Council v Hutton &

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