Cmunt v Vescio; Broder

Cmunt v Vescio; Broder - [2018] NSWCA 21 - NSWCA 2018 case summary — Zoe

Judgment

HER HONOUR: On 3 August 2017, Preston CJ LEC made declarations and orders following civil enforcement proceedings brought in the Land and Environment Court by the Snowy Monaro Regional Council against the appellant and her husband.
In summary, the civil enforcement proceedings related to a prevention notice that had been given to the appellant and her husband in respect of the keeping of dogs on the premises, which had been issued pursuant to the Protection of the Environment Operations Act 1997 (NSW); a notice given pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW) in respect of certain structures on the premises of the appellant and her husband, being fences of a certain height and poles with cameras on them; and a notice issued also pursuant to s 121B of the Environmental Planning and Assessment Act in respect of an advertising sign on the premises.
The orders and declarations made by his Honour were to the effect that there had been a failure by the appellant and her husband to comply with the relevant notices. His Honour also made consequential orders. The declarations and orders made by his Honour are as follows: "The Court: (1) Declares that the first and second respondents have failed to comply with the Prevention Notice given to them by the applicant pursuant to s 96 of the Protection of the Environment Operations Act 1997 dated 7 August 2015 in relation to [the Premises]. (2) Orders the respondents, within 60 days, to cease keeping dogs on the Premises. (3) Declares that the respondents have failed to comply with Order 0008/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified structures (first Order). (4) Orders that the respondents comply with the first Order within 60 days by: (a) removing the additional wooden structure (greater than 1.8m in height) separate to the existing fence along the side boundary …; (b) removing the additional structure (greater than 1.8m in height) separate to the existing fence along the side boundary …; (c) removing the additional structure (greater than 1.8m in height) separate to the existing fence along the rear boundary …; (d) removing the wooden pole at the side boundary …; (e) removing the pole within the Premises (near the side boundary …); and (f) removing the 'Laserlight' fencing attached to the fence along the side boundary … at the front of the Premises. (5) Orders that, should the respondents fail to comply with order 4 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979 to do all such things as are necessary or convenient to give effect to the terms of the first Order, including the carrying out of any work required by the first Order. (6) Declares that the respondents have failed to comply with Order 0007/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified advertisements and advertising structure (second Order). (7) Orders that the respondents comply with the second Order within 60 days by: (a) removing the advertisements displayed on the advertising structure; and (b) removing the advertising structure from the Premises. (8) Orders that, should the respondents fail to comply with order 7 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979, to do all such things as are necessary or convenient to give effect to the terms of the second Order including the carrying out of any work required by the second Order. (9) Declares that the first respondent has carried out the following development on the Premises in breach of the Environmental Planning and Assessment Act 1979: (a) the erection of the structures which the respondents were required to remove by the first Order, and (b) the erection of the advertising structure which the respondents were required to remove by the second Order. (10) Orders the respondents to pay the applicant's costs of these proceedings." (emphases in original)
Counsel representing the respondent Council informed the Court that the fences and structures and the advertising sign, the subject of the orders made by his Honour in the Land and Environment Court, have all been removed either by the appellant and/or her husband or by the Council. Accordingly, the respondent Council submitted that the only remaining issue in relation to compliance with the orders made by the Land and Environment Court is with respect to the presence of dogs on the property of the appellant and her husband.
Although the orders made have been set out above, it is convenient at this point to again state the order that was made in respect of the keeping of the dogs. That is order 2 made by his Honour, which is in the following terms: "Orders the respondents, within 60 days, to cease keeping dogs on the Premises."
It is the Council's case that the appellant and her husband have failed to comply with that order, and it has commenced contempt proceedings in the Land and Environment Court against the appellant for failing to comply with it.
The appellant submitted that the orders against her made by the Land and Environment Court were obtained by false evidence in circumstances where she does not own dogs and where dogs were not on the property. She submitted that, as I understand it, the present position is that the only time that dogs are on the property is when they are brought onto the property by friends. She submitted that no complaints had been made to her of dogs barking and that to the extent that the Council contended otherwise, then that was false evidence.
The appellant has brought a notice of motion for a stay of the orders made by the primary judge in the Land and Environment Court.
In addition to the matters to which I have already referred, and in particular her submission that the case brought against her in the Land and Environment Court was based on false evidence, the appellant now says that it is difficult for her to have to deal with two cases at the same time, namely, the contempt proceedings which have been brought by the respondent in the Land and Environment Court and her own appeal.
In opposition to the appellant's notice of motion seeking a stay, the respondent Council filed affidavit evidence, including an affidavit of Michael Broder, a liquid trade waste officer employed by the respondent Council. In that affidavit, Mr Broder deposed that he had witnessed dogs on the premises on a number of occasions following the Court's order. At least one of those occasions, namely, that on 26 September 2017, would not be relevant, as the appellant was given 60 days to cease having dogs on the premises. Mr Broder also refers to seeing and hearing dogs on the premises on 3 October. I have not had the opportunity to see whether that was in the 60 day period, but he also refers to seeing and hearing dogs on the premises on 4 October, 5 October, 6 October, 9 October, 10 October, 12 October, 25 October, 1 December, and 4 December 2017. He also said that he attended the premises on 8 December 2017 and 5 January 2018, when he could hear dogs barking from the premises.
In addition, Mr Broder gave evidence that he had received a large number of complaints from residents in the area about the continued presence of dogs on the premises. That evidence, of course, is hearsay, but this is an interlocutory application and hearsay evidence is admissible. Those complaints commenced on 5 October 2017 and continued throughout October, November, and December of 2017. Relevantly, for the purposes of determining whether a stay should be granted, Mr Broder also referred to a complaint made on 15 January 2018 by a Jillian Kelley and on 16 January 2018 from Alisyn Robinson.
The appellant, in addition to making her general refutation of there being dogs on the premises and/or dogs barking, submitted that Alisyn Robinson (who is said to have complained to the Council) lives in Sydney and that her property in the area is only a holiday property. The appellant also contended that Mr Broder was not a person who had authority to make complaints about her occupation of the premises and/or her having dogs on the premises. The appellant submitted that he was from the old Council and, as I understand it, that Council has now been amalgamated. The appellant submitted that there has been no evidence brought by the new Council. The appellant also made complaint that a solicitor has filed evidence in the matter, being Ms Scotton, in circumstances where the solicitor on the record is Alan Bradbury.
In order to be entitled to a stay, the Court is entitled to have regard to the substance of the appeal, although, in circumstances where there is no argument advanced on the appeal, that is not usually the primary consideration in determining whether a stay should be granted. Nonetheless, it is relevant and, accordingly, I will refer to the grounds of appeal. Before doing so, it should be noted that the appellant has brought her appeal against two individuals, the first being Josef Vescio, who I understand to be the general manager of the respondent Council, and Michael Broder, to whom I have already referred. The respondent Council complains at the outset that the appeal is wrongly constituted and that the proper respondent is the Snowy Monaro Regional Council.
I agree with that observation, but directions can be made in due course for the removal of the parties who are inappropriately joined and for the joinder of the correct respondent. Having said that, I understand that Ms Hammond, who appeared for the Snowy Monaro Regional Council and submitted that the Council is the correct respondent, has advanced submissions on behalf of the Council as the correct respondent.
The appellant in her grounds of appeal has raised six grounds. The first is that the Council has no jurisdiction over the residence. That was dealt with by the primary judge, at [24], and it would seem to me that that ground would have little, if any, prospects of success.
Ground 2 raised the false accusations, to which I have referred. The primary judge dealt in detail with the evidence that had been adduced in the civil enforcement proceedings brought against the appellant and her husband, and on its face there is nothing that would lead me to determine that ground 2 could be made out, although I say that in circumstances where this is a hearing of a stay only, and what might emerge on an appeal is not something that I can predict.
In ground 3, the appellant complained that the respondent did not reply to the response she sent to the Land and Environment Court. She said that was because "there was nothing to answer for". In saying that, I am quoting from ground 3. That will be a matter for consideration on the appeal, but in circumstances where the primary judge's judgment was detailed, it is difficult to expect that the matters raised by the appellant before his Honour were not taken into account. In that regard, I note that there are many references throughout the judgment to the appellant and, in particular, to her evidence.
In respect of ground 4, the appellant submitted that her documents and photos were not taken into account. That does not conform with what the primary judge said at [26] of his reasons, where he does refer to the appellant's documents. It will be a matter for the appellant on the appeal to establish how that ground can be made out and I say nothing more about it.
In ground 5, the appellant alleges that the Council has breached all Australian laws and rules. This ground is directed to the positions occupied by Mr Vescio and Mr Broder, the fact that the respondent Council had ignored her intention to appeal, the suggestion that Mr Broder had sent a slanderous letter to the residents in the street, and that Mr Broder had demolished "all our front property". On their face, these matters do not seem to form an arguable basis for an appeal against the Council, particularly in circumstances where it is difficult to see that these grounds will succeed as against the proper respondent, the Council. In addition, the respondent Council submitted that those grounds are not relevant to the appeal in any event, given that the proper party to the appeal is the Council.
Ground 6 complained that in the proceedings in the court below, only Mr Broder gave evidence in the witness box, and that other statements that had been made by workers came before the court in circumstances where the Council did not call those persons to give evidence. The respondent Council submitted, however, that the only person that the appellant required for cross-examination was Mr Broder. I should note that that was a statement made from the bar table and that there was no evidence to support that statement. However, counsel appearing for the respondent Council has serious responsibilities to put only accurate matters before the Court. In any event, that will be able to be proved if it remains in contention.
That brief review of the grounds of appeal and the submissions made in respect of them indicates that the appeal is not strongly arguable, if it is likely to have any prospects of success at all.
The other matter that is relevant in determining whether a stay should be granted is whether or not a failure to grant a stay will mean that any appeal will be rendered nugatory. In Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 2 NSWLR 685 at 695, the Court stated that "this will be a substantial factor in favour of the grant of a stay".
In this case, except for the position in relation to the keeping of dogs on the premises, the orders of the Court have been satisfied either by the appellant and/or her husband or by the Council. The position in relation to the dogs, the subject of order 2, is the only matter, insofar as preservation of the substance of the appeal is concerned, which is of relevance. The appellant, for her part, says there are no dogs on the premises unless they are brought there temporarily by others. She also says that there is no problem with any dogs barking. The respondent Council, however, has adduced evidence of complaints up until 16 January 2018 in respect of dogs being on the premises and barking. There is no evidence as to whether those dogs were on the premises temporarily and if so, whether that would be in breach of the Court order.
In all the circumstances, it seems that there is no prejudice to the appellant pending the appeal if she says that she does not keep dogs on the premises, so that it cannot be said that the appeal will be rendered negatory unless a stay is granted. I have determined that the application for a stay should be refused and accordingly I order that the appellant's notice of motion for a stay be dismissed. [DISCUSSION RE COSTS]
I make the following orders: (1) The notice of motion for a stay is dismissed; (2) Costs of the notice of motion to be costs in the appeal, save that the respondent Council is to bear the costs of the services of the interpreter on 29 January 2018; (3) Council to make any application it considers appropriate in relation to the proper respondents to the appeal.

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