Drummoyne Municipal Council v Lewis and Ors

Land and Environment Court (NSW)|1997-05-23|Before: Pearlman J, Bignold J

CITATION : Warringah Council v. Peter Welsh [1998] NSWLEC 123 APPLICANT Warringah Council

FIRST RESPONDENT Phillip Franks PARTIES : SECOND RESPONDENT Peter Welsh

THIRD RESPONDENT Robert Antoun FILE NUMBER(S) : 40123 of 1997 CORAM: Pearlman J KEY ISSUES: :- Land and Environment Court Act 1979 s 5(2) LEGISLATION CITED: Land and Environment Court Rules 1996 pt 15 r 2(1), pt 2 r 1,pt 1 r 5(2) Supreme Court Rules 1970 pt 42 r 8 Drummoyne Municipal Council v Lewis and Ors (1974) 1 NSWLR 655; CASES CITED: Rogerson v Tchia and Ors (1995) 123 FLR 126; Foley v Herald-Sun T.V. Pty Ltd and Anor (1981) VR 315; High Court in Witham v Holloway (1995) 183 CLR 525 DATES OF HEARING: 23/03/98, 24/03/98 DATE OF JUDGMENT: 05/19/1998

APPLICANT Mr D P Wilson, Barrister Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr C J Leggat, Barrister David Trodden & Associates

These are contempt proceedings. By notice of motion, the applicant, Warringah Council, seeks an order from the Court finding both the first respondent, Mr Phillip Franks, and the third respondent, Mr Robert Antoun, guilty of contempt of orders of the Court.

Initially, the council sought an order that the second respondent, Mr Peter Welsh, also be found guilty of contempt, but that proceeding was ultimately abandoned by the council.

The statement of charge is identical in all material respects in the case of each respondent. It is sufficient if I set out the statement of charge in relation to Mr Franks. It reads as follows

"The First Respondent/Contemnor did not comply with Order 1 of the Orders made by the Court on Friday 23 May 1997 which provided:-

`On the Application of Warringah Council the Court Orders each of the following persons:-

by themselves their servants, agents and contractors to forthwith cease carrying out earthworks including the construction of a rock boulder seawall at Lots 1 and 2 DP853885 known as 2 and 2A Goodwin Street Narrabeen and on the Crown Reserve adjoining these properties to the east until further order.'

in that the First Respondent/Contemnor, after service of the Order on him at approximately 9:10am on 24 May 1997,:-

(a) did not by himself and his servants, agents and contractors forthwith cease the carrying out of the earthworks including the construction of the rock boulder seawall on the lands referred to in the Order, and

(b) continued by himself and his servants, agents and contractors to carry out earthworks including the construction of the rock boulder seawall on the lands referred to in the Order until approximately 4:30pm on Saturday 24 May 1997."

Both Mr Franks and Mr Antoun (to whom I will refer collectively as "the respondents") have pleaded not guilty to the charge.

The evidence of Mr A M Hudson, the council's solicitor, as to the making of the order is unchallenged.

Mr Hudson telephoned an officer of the Court at approximately 9:40pm on 23 May 1997, and was told that the duty judge was Bignold J, who was available to hear an urgent application over the telephone for an injunction. At approximately 9:50pm, Mr Hudson telephoned Bignold J and applied for an urgent injunction. At approximately 10:30pm, Bignold J granted the order sought and dictated its terms to Mr Hudson on the telephone. Mr Hudson stated that, at the direction of his Honour, he wrote the order out together with a notation about penalties for non-compliance. He then telephoned his Honour again and read to him what he, Mr Hudson, had written, and his Honour confirmed to Mr Hudson that these were the terms of the order which his Honour had made.

Mr Hudson said that, at the time of these conversations, he was in his office, but, as he was unable to operate the word processor, he wrote the order out by hand, although he endeavoured to set it out in the form of a court order. The handwritten document was dated, but it was not signed nor sealed with the seal of the Court. A copy of the handwritten document is annexed to this judgment and marked `A'.

The land the subject of these proceedings (" the site") is lot 2 in DP 853855 known as No 2 Goodwin Street Narrabeen (owned by Mr Franks) as well as adjacent Crown land which comprises part of Narrabeen/Collaroy beach. [The reference to the deposited plan number in the statement of charge appears to be incorrect, but nothing turns on that].

The events leading up to the issuing of the ex parte injunction are as follows:

10-11 May 1997: During the night, there was a significant storm in the Narrabeen/Collaroy beach area.

12 May 1997: Mr Franks telephoned Mr Len Thompson, general manager of the council, to complain that the storm had caused damage to his property.

14 May 1997: Mr Franks engaged Mr Antoun to carry out work on the site.

16 May 1997: Mr Antoun arranged material and machinery to carry out the work.

19 May 1997: Mr Stewart Cook, a council officer, visited the site and observed machinery on the site and works occurring.

20 May 1997: Mr Cook, Mr Hudson and other council staff visited the site. Mr Cook spoke to Mr Antoun and asked him to stop work. Mr Antoun said that was a matter for Mr Franks as the owner of the site. Mr Franks arrived at the site and told Mr Cook and the persons accompanying him to leave the site.

In the afternoon, Mr Franks attended an appointment with Mr Raymond Kent, director-service group, at the council. Mr Kent asked Mr Franks to stop work on the site pending a meeting on the site arranged for the following day. Mr Franks agreed to stop work.

21 May 1997: Mr Franks, Mr Kent and other persons met at the site. There was a discussion about the respective responsibilities of the council and the Department of Land and Water Conservation, and about the lodgment of a development application.

22 May 1997: Mr Cook inspected the site at about 8:30am and saw that no work was being carried out.

The council's solicitors wrote to Mr Franks' solicitors seeking, amongst other things, an undertaking not to carry out work on the site until development approval and building approval had been obtained, and notifying their instructions to seek an ex parte injunction if work recommenced. According to the transmission report, that letter was sent by fax at 13:56pm.

23 May 1997: Work recommenced on the site (at about 1:30pm, according to Mr Antoun) and continued under floodlights until approximately 11:00pm.

Although there is some discrepancy in the versions of each of the parties as to how the handwritten document was served, I find beyond reasonable doubt that a copy of it was served on each of Mr Franks and Mr Antoun on 24 May 1997.

Mr Cook gave evidence of service of the handwritten document on Mr Franks in his affidavit sworn on 27 May 1997. In paras 20 to 24 inclusive, he deposed to the following relevant facts:

At approximately 9.05am (on 24 May 1997) Mr Cook placed a copy of the handwritten document in the letterbox on Mr Franks' property.

He had a conversation with Mr Franks' son, and about five minutes afterwards, Mr Franks arrived at the site and came to where Mr Cook was standing.

Mr Franks spoke some words to Mr Cook and the two police officers with whom Mr Cook was standing. Mr Cook had a copy of the handwritten document in his hand. He reached out with this copy to Mr Franks, looked directly at him, and said:

Some words were then spoken between Mr Franks and Mr Antoun, the two excavator drivers who were on the site, and Mr Cook, following which Mr Cook handed a copy of the handwritten document to Mr Franks, who did not unfold it, but said:

In his affidavit of 27 October 1997, Mr Franks deposed as to his attendance at the site at about 9:30am on the morning of 24 May 1997. He stated that he was shown a piece of paper by Mr Antoun, and Mr Cook said words to the effect of "This is the order of the Court". Mr Franks said that he re-examined the handwritten document, and could see that it bore no endorsement of the Court. He stated that it was not signed by any person nor was it stamped with the Court seal. He further stated that he did not believe that it was a Court order.

In the same affidavit, Mr Franks stated that he found a copy of the handwritten document in his letterbox on 25 May 1997, it being the same document as that which he had been shown by Mr Antoun on 23 May 1997 (I take it that this date is correctly meant to refer to 24 May 1997).

These two versions of the events surrounding the service of the handwritten document on Mr Franks differ in only one circumstance, which is that Mr Cook asserts that he handed a copy to Mr Franks, and the Mr Franks asserts that, at the relevant time, he inspected a copy handed to him by Mr Antoun. I do not think there is any significance in this difference. I am satisfied beyond reasonable doubt that the handwritten document was served on Mr Franks on 24 May 1997.

As to Mr Antoun, Mr Cook deposed, in para 18 of his affidavit of 27 May 1997, as to the following relevant facts:

On 24 May 1997, he saw Mr Antoun, who was known to him, on the site.

Mr Cook handed a copy of the handwritten document to Mr Antoun and said to him:

"Robert, this is a court order that the council got last night. You must stop this job now and be at Court at 9:30am on Tuesday morning."

Mr Antoun opened the handwritten document, looked at it, and asked Mr Cook if it was "a proper court order". Mr Cook replied that it was "valid, issued last night".

In his affidavit of 30 October 1997, Mr Antoun deposed to the facts and circumstances surrounding the handing over of the handwritten document. His version does not differ in any material particular from the version recounted by Mr Cook. Mr Antoun stated in his affidavit that the handwritten document was not signed, and did not bear a Court seal, and he did not believe it was a Court order. He deposed to the fact that the following conversation took place between himself and Mr Cook:

`I don't know anything about that. This is what I got on the fax machine.'

`Are you going to take responsibility for the safety of the public on the beach?'

`It's unsafe, if you don't take responsibility I have got to keep going to make this area safe'.

`I am not going to take responsibility, all I'm doing is serving a work order'.

Mr Hudson, in an affidavit sworn on 18 June 1997, deposed to having a telephone conversation with Mr Antoun on the morning of 24 May 1997 in or to the effect of the following:

`I'm Anthony Hudson solicitor for the council. I met you the other day I was one of the solicitors I had a suit on.'

`I'm ringing you to verify that the order you received from council officers this morning is an order that has been made by the Court, made by the judge on the telephone. It requires you to stop work forthwith. Also you will note that if you don't comply with this order you could be in contempt of court and you could face different types of penalties. I am drawing your attention to the top part of the order which tells you what can occur if you do not comply with this order. Do you have a copy of the order?'

`Yes. Look, I don't care what the order says I have to make this safe. Have you ever heard of the Occupational Health and Safety Act?'

`Yeah, well I have to make it safe. It doesn't matter when I first got the order. I was about quarter of the way finished. It doesn't really matter how far away from being finished I am but what I have to do is make it safe here. I wouldn't care if John Howard came down here and told me to stop work the Occupational Health and Safety Act - look I've been through this before I have to make the job safe. What happens if these rocks fall or something happens the Council will just say see Antoun he's the one that did the work. I'm nearly finished and I have to make this safe.'

`I'm telling you that the order requires you to stop work immediately. You should be aware that if you don't stop work immediately you could face contempt of court and all sorts of penalties.'

`So you're telling me now that you are refusing to comply with this order and that you will not be stopping work? Well I am writing this down now because you are telling me that you will not obey this order'.

`But that's what you are telling me you're still working. I can hear the machinery in the background. I can hear the rocks and the machinery'.

`That is not the waves, I can hear the machinery in the background. You are telling me that you will not stop work'.

`The purpose of this call is to let you know that the order you have is a proper order made by the Court last night over the telephone to me by the judge. You have an order it requires you to cease work immediately. That is why I'm telephoning you because the council officer said that you questioned the validity of the order'.

`Well I'm telling you and verifying that that is a valid order made by the Court'.

There then ensued some conversation about how Mr Hudson had obtained Mr Antoun's telephone number, and finally Mr Hudson repeated his statement that the document was "a valid order".

Mr Antoun did not mention this conversation in either of his two affidavits filed in the proceedings, but in cross-examination, he agreed that it had taken place and he agreed generally with the substance of it, although he denied that he recollected the actual words said. He claimed, however, that he did not use disrespectful or cheeky words (such as, for example, the reference to John Howard).

I am satisfied beyond reasonable doubt that the handwritten document was served on both Mr Franks and Mr Antoun on the morning of 24 May 1997.

Each of the respondents, through their counsel, Mr Leggat, claim that they should not be found guilty of contempt upon the following alternative grounds:

(1) The handwritten document was not, as a matter of law, a valid order of the Court;

(2) Even if the handwritten document was a valid order of the Court, the Court should nevertheless refrain from a finding of contempt in circumstances where neither of the respondents was served with a regular and authenticated form of order;

(3) The Court should not find either of the respondents guilty of contempt in circumstances where (a) neither of them believed that an injunction had in fact issued and (b) the handwritten document did not constitute sufficient notice of the order which had issued.

The Land and Environment Court Act 1979 ("the Court Act"), the Land and Environment Court Rules 1996 ("the L&E Rules") and the Supreme Court Rules 1970 ("the SC Rules") (insofar as they have been adopted in this Court by pt 6 r 1 of the L&E Rules) contain various provisions about the making of orders of the Court. The provisions are which are relevant to this issue are as follows:

Section 5(2) of the Court Act: which provides that there shall be a seal of the Court, and any document required by the Court Act or any other Act or law to be sealed or stamped with the seal of the Court shall be so sealed or stamped.

Part 15 r 2(1) of the L&E Rules: which provides that the Court may, at any stage of any proceedings, on the application of any party make such order as the nature of the case requires.

Part 2 r 1(3) of the L&E Rules: which provides that orders of the Court when issued out of the Court are to be sealed with the seal of the Court.

Part 2 r 1(1) and 1(2) of the L&E Rules: which, read together, provide that a rubber facsimile seal may be used instead of the impressed seal;

Part 42 r 8(1) and 8(6) of the SC Rules: which provide that a judgment shall not be enforced by committal or sequestration unless a minute of the judgment is served personally on the person bound; but where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment by being notified of the terms of the judgment whether by telephone, telegram or otherwise, the judgment may be enforced by committal or sequestration notwithstanding that service has not been effected in accordance with this rule.

The L&E Rules do not require an order to be typed, nor do they require the order to be signed by a judge.

The only non-compliance, then, in the form of the order was that it was not sealed with the seal of the Court.

Part 1 r 5(2) of the L&E Rules provides that the Court may, on terms, dispense with any requirements of the L&E Rules, either before or after the occasion for the compliance arises. I find that such a dispensation occurred in this case. Although there is no direct evidence of an application to or of an order of the Court in this case dispensing with the requirement of affixing the seal to the order, that is the only inference available from the facts. Bignold J gave the order over the telephone. Mr Hudson told Bignold J that he would write the order out, and ring back and read it over to his Honour. He wrote it out, then rang back, and told Bignold J he had put it into the form of an order as best he could. He read it out, and Bignold confirmed it, and proceeded then to discuss with Mr Hudson how the order could be served that night. It is clear that his Honour contemplated that the order, without a seal of the Court, would be served in that form.

I find, accordingly, that the handwritten document was a valid order of the Court.

A further issue is whether, despite the validity of the order, the respondents should not be found guilty of contempt when they did not receive an order sealed with the seal of the Court. Mr Leggat submitted that the failure to comply with the procedural rule requiring sealing of the order should not be disregarded but should instead be a basis for the Court refusing to find either Mr Franks or Mr Antoun guilty of contempt.

Mr Leggat supported this submission by pointing to the reluctance of courts to punish disobedience where the order has not been personally served, and he relied upon Drummoyne Municipal Council v Lewis and Ors (1974) 1 NSWLR 655 and Rogerson v Tchia and Ors (1995) 123 FLR 126.

However, those authorities do not support the proposition that an irregularity in form or procedure must necessarily operate as a basis for refusing to make a finding of contempt. Rather those cases support the proposition that, given the serious consequences of a disobedience of a court order, non-compliance with procedural requirements should not be disregarded by a court, unless there are special circumstances justifying the non-compliance.

In Drummoyne v Lewis, Holland J, in the Equity Division of the Supreme Court, refused to make an order committing the defendants for contempt, in circumstances where a minute of the judgment had not been served in accordance with pt 42 r 8(1) of the SC Rules. His Honour stated that the power provided in pt 42 r 8(6) ought to be exercised sparingly, and that where the rules require in mandatory terms personal service of the order, those rules ought not to be disregarded unless there are special circumstances justifying non-compliance.

In Rogerson v Tchia at p 131, the Supreme Court of the Northern Territory exhorted courts to bear in mind, when exercising the power of the court to relieve a party from the consequence of non-compliance with the rules, the fact that the proceedings involve the liberty of the subject. The Supreme Court found that the trial judge had in fact taken those consequences into account in excusing, in the circumstances of the case, the non-compliance with the rules.

The circumstances in those cases were different to the circumstances of this case. Here an order was made late at night on the telephone in order to restrain work which was continuing into the night hours and the handwritten document setting out the order was served after the work had recommenced the next morning. I am of the opinion that those circumstances constitute the kind of special circumstances to which, with respect, I understand Holland J and the Northern Territory Supreme Court were referring.

A crucial issue in this case is whether Mr Franks and Mr Antoun had proper notice of the order. Put another way, the question is whether notice of the Court's order came to the attention of the respondents in such a way that they were each bound by its terms so that if they continued the work they would be acting in disobedience of that order.

On behalf of the council, Mr Wilson submitted that each of the respondents received such notice as in the circumstances would have led reasonable persons in their position to obey the order by ceasing to carry out the work.

In Foley v Herald-Sun T.V. Pty Ltd and Anor (1981) VR 315, McGarvie J, in the Supreme Court of Victoria, was concerned with an application for an order for contempt of court against various parties, including Mr Michael Willesee, who was the presenter of a television programme. The plaintiff had sought and obtained an ex parte injunction restraining the defendants from publishing a film relating to him. After the programme had commenced, but before the film was shown, Mr Willesee was informed that a man was on the telephone, who said he was a solicitor, and who said that he had an injunction to stop the film being shown. Mr Willesee showed the film.

After referring to the fact that a person restrained by an injunction is bound when he has proper notice of the injunction, his Honour went on to consider the requirement for proper notice in the following passage at p 319:

"I turn to consider what is the standard which the law applies in requiring that the respondents must have had proper notice of the injunction before their conduct amounts to contempt of court. Notice of an injunction may vary from the clear and unambiguous notice had by a person who is in court when the order is pronounced and who is served with a copy of it, to the doubtful and ambiguous notice which is received by a person who is told by a stranger of a rumour that an injunction has been granted. In my opinion ... the respondent Willesee would be guilty of contempt of court if at the time when he showed the film he believed that an injunction had been granted or if at that time he had received such notice as in the circumstances would have led a reasonable person in his position to refrain from showing the film. A reasonable person would be a reasonable citizen desirous of acting in accordance with any order of a court ..."

In stating the law as he did, McGarvie J was following Ex parte Langley, Ex parte Smith, Re Bishop (1879) 13 Ch.D. 110. That was a case where notice of an ex parte injunction was given by telegram to an auctioneer about the sell the debtor's property, in a situation where the auctioneer swore that he did not believe an injunction had been granted having regard to the particular circumstances. At p 118, James L J said:

"But it is very difficult to commit for contempt where a man says that which the auctioneer does here, under circumstances which certainly give colour to his assertion, and there is some amount of probability that he may, having regard to what had already taken place on that day, not have believed that any order had been made by the Court, and have had no suspicion whatever that he was disobeying any order of the Court when he continued the sale."

On behalf of the respondents, however, Mr Leggat submitted that, since the decision of the High Court in Witham v Holloway (1995) 183 CLR 525, the test is no longer that of a reasonable person in the position of the contemnor, as enunciated by McGarvie J in Foley v Herald-Sun. Rather, the test is one of mens rea - did the respondents have an intention to disobey the order of the Court?

It was held by the High Court in Witham v Holloway that all proceedings for contempt are criminal in nature;

Hence, for the charge of contempt to be made out, it is necessary to establish, not only that the order was in fact disobeyed, but that the contemnor intended to disobey it, that is, mens rea must be established as an element of the offence;

The relevant mens rea is an intention on the part of the contemnor to act in a way that is criminal, that is, an intention to disobey the order of the court;

That necessary element of mens rea is entirely lacking in this case, because the Court would find that neither Mr Franks nor Mr Antoun intended to disobey an order of the Court because neither believed that they had been served with such an order.

I do not think that, at least in the particular circumstances of this case, there is any difference in principle in the submissions on this point by counsel for either party. It seems to me that, in this case, those submissions amount to saying the same thing in different ways. If the respondents did not have proper notice of the order of the Court, then their actions in continuing the work could not amount to contempt of that order, either because they could not therefore have intended to disobey it or alternatively because they were not bound by the order. Whatever approach is adopted, a question of fact must be decided - did the respondents each have notice that an injunction had been issued by the Court?

The point of principle might be different if the question was whether the alleged disobedience of the order was casual, inadvertent or unintentional. But that is not the issue here. At the time of service of the handwritten document each of Mr Franks and Mr Antoun expressed doubt as to its authenticity. The question is whether, in all the circumstances, that doubt amounted to no notice of the order, or whether, instead, whether those doubts were dispelled and they each had proper notice of the order.

(I accept, for the purpose only of this case, that Witham v Holloway is in fact authority for the proposition that mens rea must be established an element of the offence of contempt of court, but I note that the High Court did not, in that case, deal with the particular ingredients of a charge of contempt. Rather, the case dealt with the standard of proof required in proceedings for contempt, and it was held by the High Court that all charges of contempt must be proved beyond reasonable doubt).

In deciding the question of fact, it is appropriate to have regard to all of the evidence, including the surrounding circumstances (see the passage from the judgment of James LJ in Ex p Langley, Re Bishop which I have earlier quoted).

I turn then to consider the evidence, first, in regard to Mr Franks, and, secondly, in regard to Mr Antoun.

Mr Franks knew that the council wanted the work to stop. He was asked to stop work by Mr Kent on 20 May, and he knew, from the conversation at the site meeting on 21 May, that the council asserted that development approval was required for the work. He also knew, from the letter sent by the council's solicitors to his solicitors on 22 May, that the council was seeking an undertaking to cease the carrying out of the work, and that those solicitors had instructions to seek an injunction should the work recommence.

There was also some indication of the nature of the handwritten document arising from the circumstances in which it was served on Mr Franks on 24 May. Mr Cook endeavoured to serve it, stating that it was a court order. Mr Cook was not a stranger, unconnected with the matter, such as a process server. He is a council officer (a fact known to Mr Franks, who had met him on site on 20 May) and he was accompanied at the site by two police officers.

There was no doubt that the handwritten document purported to restrain further work. It was directed to Mr Franks, among others, was expressed in clear terms, contained a notification of punishment for failure to comply, and contained, in underlined capitals, the following notation:

"Ordered by the Honourable N R Bignold Judge of the Land and Environment Court at 10:30pm Friday 23 May 1997."

On the other hand, Mr Franks' evidence was that he doubted that the handwritten document was an order of the Court. It was submitted by Mr Leggat on his behalf that the existence of that doubt is corroborated by a number of matters:

The document was handwritten and did not bear the seal of the Court;

Mr Franks' belief, which he expressed to Mr Cook on the morning of 24 May, that the whole matter was a political one and that the council staff and their advisers were "liars";

Mr Franks' opinion that the council was merely making threats and nothing more;

That Mr Franks had never before seen a court order in the form of the handwritten document.

Despite Mr Franks' assertion that he doubted at the time that the handwritten document was an order of the Court, I am satisfied beyond reasonable doubt, having regard (a) to events and circumstances following the storm and leading up to the issue of the order; (b) the manner and time of its issue; and (c) the manner of its service, that Mr Franks had proper notice that the Court had issued an order requiring the cessation of work on the site and that the continuance of work on the site would amount to a disobedience of that order.

The circumstances relating to Mr Antoun are slightly different. He was not a party to any conversations with council officers until 20 May, when Mr Cook came to the site and asked Mr Antoun to stop work. According to Mr Cook's affidavit, Mr Cook explained to Mr Antoun that the work which he was doing required development approval and building approval. Mr Antoun took the view that he was engaged under contract to Mr Franks, and it was for Mr Franks to direct him to stop. But he could have been in no doubt that the council wanted the work to stop.

Mr Antoun was also served in formal circumstances, by Mr Cook, as an officer of the council, in the presence of two police officers. He was told that the handwritten document was an order of the Court and that work must cease. That advice was confirmed in clear and emphatic terms in the conversation which Mr Antoun had with Mr Hudson later on the same day.

I find beyond reasonable doubt that Mr Antoun too had proper notice that the Court had issued an order requiring the cessation of work on the site.

The statement of charge alleges that work on the site continued until approximately 4:30pm on 24 May 1997.

Mr Franks' response to the order served on 24 May 1997 was immediately to tell Mr Antoun and his employees to go back to work. According to the affidavit of Mr Cook, Mr Franks gave that instruction first to the two excavator drivers and then to Mr Antoun.

Mr Cook later observed the site. At about 10:30 am on 24 May, he saw the rock boulder seawall being constructed, with the two excavators working in front of the wall, and he saw Mr Antoun sitting on Mr Franks' property observing the work going on in front of him. At about 3:50pm on the same day, Mr Cook saw the two excavators continuing with the work, again observed by Mr Antoun. Mr Cook made the same observation from another point at about 4:20pm on that day. However, Mr Cook saw no work being carried out on 25 May 1997 or 26 May 1997.

I am satisfied beyond reasonable doubt that work continued upon the site after the order had come to the notice of the respondents.

Mr Antoun asserted in his affidavits and in cross-examination that his main objective in continuing work after the order had been served was to make the site safe.

He said that he considered at the time that the best method of achieving that objective was to take the rock boulders which had been placed on the beach adjacent to the shoreline and use them to continue to build the rock wall. In his affidavit of 30 October 1997, he deposed to a conversation he had with Mr Franks after the order had been served, in which he told Mr Franks that the area need to be safe for the public, and that would involve moving the stockpiled rocks off the beach and into place on the rock wall.

Mr Leggat submitted that having regard to those matters:

the work that was carried out until 4:30pm on 24 May 1997 could not be regarded as a work within the description of the work restrained by the order. Paragraph 1 of the order refers to "earthworks including the construction of a rock boulder seawall". In Mr Leggat's submission, the works which were done were in the nature of making the site safe, and they were not done for the purpose of constructing the rock boulder seawall;

in the alternative, the work was done without any intention of disobeying the order but with the intention of making the site safe and fulfilling what the respondents thought were their statutory obligations regarding occupational health and safety. Hence, he submitted, the respondents should not be found guilty of contempt.

The evidence does not support a finding that the continued construction of the rock boulder seawall was solely for the purpose of safety. Evidence was given by Mr G A Davis, an engineer with the Department of Land and Water Conservation, as to other alternatives which were available to make the site safe. Furthermore, although Mr Antoun did express his concern about compliance with occupational health and safety statutory obligations, first, in his conversation with Mr Cook when the order was served, and secondly, in his conversation with Mr Hudson afterwards, he was told that, despite that concern, he was required to stop work. Rather than considering other alternatives in circumstances where work was required to cease, he told Mr Franks of the course he proposed to adopt and he continued building the seawall.

The position is clearer in the case of Mr Franks. His response to the order, as I have earlier noted, was to direct Mr Antoun and his employees to return to work. I do not accept that Mr Franks had any concern about occupational health and safety. His concern was to get the work done, as he said in cross-examination:

"You see I just pulled into line something that's been going on for 40 years and did it in five days ..."

I find that the work which was carried out on the site between approximately 9:30am and 4:30pm on 24 May 1997 was carried out in breach of the order of the Court.

I find the respondents, Mr Franks and Mr Antoun, guilty of contempt of the order of the Court made on 23 May 1997.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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