Kogarah Municipal Council v Fokas

LEGISLATION CITED: Land & Environment Court Act 1979 Local Government Act 1993 s 124

EX TEMPORE JUDGMENT DATE: 07/29/1999

APPLICANT SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT In Person

IN THE LAND AND Matter No: 40079 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 29 July 1999

In these Class 4 proceedings Council seeks to enforce an order made by it pursuant to s 124 of the Local Government Act 1993.

That order is contained in a letter from the Council to Mrs Fokas dated 22 December 1997 . It is before the Court as Exhibit C1 . It asserts the results of an inspection as revealing that Mrs Fokas or someone on her behalf kept at the property the following birds or poultry one rooster, one peacock, three ducks and twenty-two chickens.

Under Council's Local Orders Policy No.18, the specified maximum allowable poultry, as in chickens, on a residential property is 5, and roosters are not to be kept on any residential property within the Kogarah Municipality. The order goes on to direct Mrs Fokas to remove from the property any roosters and any excess over 5 chickens.

Mrs Fokas challenged the order in this Court in early 1998 . Commissioner Brown dismissed her appeal on 30 March 1998 in Matter No.20001 of 1998 and on 25 June 1998, I granted an application by the Council to strike out Mrs Fokas's purported appeal (under s 56A of the Land and Environment Court Act 1979) against Commissioner Brown's decision. In doing so I attempted to deal in some detail with all Mrs Fokas's criticisms of the Order, and of the judgment given by Commissioner Brown upholding it.

In consequence of that decision and the dismissal of that appeal, Mrs Fokas had fourteen days to comply with the Council's order.

On 19 February 1999 the now solicitors for the Council wrote to Mrs Fokas giving her seven days to comply with that order, and threatening proceedings such as those which are now before me.

The Class 4 application was not filed until two months after that letter, namely on 13 April 1999, and it seeks the following relief: 1. A declaration that the Respondent by herself, her servants, agents and assigns has not complied with a Section 124 Order 18 under the Local Government Act, 1993 issued by the Applicant on 22 December 1997 and confirmed by this honourable Court on 30 March 1998. 2. An order that the Respondent by herself, her servants, agents and assigns comply with the terms of that order and remove from the premises 14 English Street, Kogarah the rooster. 3. Further or other order. 4. Costs. 8. The matter has been before the Registrar on several occasions and, even allowing for Mrs Fokas's strongly held views about all that has gone before, and for her failure to arrange some legal representation in these proceedings, fairly straightforward directions were made about the filing and service of the parties' evidence by way of affidavit. The case was listed for hearing for today some 6 weeks ago and the timetable for the filing and service of evidence was fairly loose and generous.

As on the two previous occasions, today the Court has allowed Mrs Fokas substantial latitude in the presentation of her case. I allowed her to bring her rooster into the Court, to rely during submissions on a document upon which she said during evidence she would not rely, and to mix evidence and submissions throughout her presentation.

The Court sympathises with her attachment to her pets and her stated preference for poultry over, e.g., dogs. However, the Council policy prohibits roosters and limits the numbers of poultry. Again today, Mrs Fokas contends that the policy behind the Council's order is void, but that point is not an issue in these proceedings. These are Class 4 proceedings and there is no cross application.

Accordingly, the issues before the Court today concern only events since 25 June 1998 and those issues are: 1. Is there an order? 2. Is there a breach? 3. Should the Court enforce the order?

Most other issues between the parties have already been litigated in the Class 2 proceedings and are, as Mrs Finn submitted, res judicata, even apart from considerations as to their relevance to these 3 specific questions I have posed.

The Council relies upon the sworn evidence of its officer, Tony Pavlovic, and of Mrs Fokas's neighbour, Marlene Kederian. Both testify to a continuation of rooster noises since before I last dealt with this matter 13 months ago. Neither was required by Mrs Fokas for cross-examination so their evidence is unchallenged. Ms Kederian complained to Council on 10 September 1998, relevantly more than 14 days after I gave my judgment on 25 June 1998.

Mr Pavlovic attended Mrs Fokas's property on 17 November 1998, 30 March 1999, 20 April 1999 and 5 May 1999 and observed on each of those occasions a rooster which he has described, and which on two occasions he photographed (see Exhibits C2 and C3 ). In his affidavit of 23 July he expresses the opinion - and it is therefore his sworn opinion - that the " browney coloured rooster appeared [to him] to be the same [one] he observed in 1997 and prior to 14 April 1998 ".

The evidence on behalf of Mrs Fokas is directed to her assertion that she disposed of the rooster, which was in her possession at relevant times in late 1997 and in early-to-mid 1998, straight after my judgment was given on 25 June 1998, and that the rooster now at the premises, and present with her today at Court, is a different rooster which is much quieter than the other one, which is or was its father. She says the Council order can refer only to whatever rooster was on the property at the time of the order or orders of the Council, and/or the order or orders of the Court.

There are before the Court several photographs (including Exhibit F1 ). With my untrained eye I am unable to distinguish between the roosters depicted in those photographs, despite Mrs Fokas's best efforts, assisted by the unprecedented step I took in allowing her to bring a rooster into the Court room during her submissions.

Mr Pavlovic swears that in his opinion the rooster he has seen on each occasion is the same one. Mrs Fokas swears it is not.

She produced some evidence of an assertion made to Council as long ago as 8 October 1998 that she had observed the Court's decision and that one of the chickens on her property could grow up to be a male. I should note that she said in that letter only that " I do not have any more the rooster " but I draw no adverse inference from that careful phraseology.

Over the understandable objections of Mrs Finn I allowed Mrs Fokas to tender Exhibit F2 which is a certificate of sorts which I will now read in full. The heading on the certificate is Marilyn A Gill BVSc MVM, James H Gill BVSc MVM, MACVSC, and the subtitle, Veterinary Surgeons. These people give an address at Austral and an address at Canley Heights. The document is headed To Whom it may Concern:

On 16/07/99 I examined Roosters, a bird owned by M Fokas. The details of the consultation are as follows: Diagnosis: Presented, two photographs by Mrs Fokas, one dated 21/12/97 of a Rhode Island Red rooster. History: The second photograph dated 1/6/99 is a Golden or Red-Laced type rooster. In my opinion they are distinctly different birds. Yours sincerely, James Gill.

I must at once observe that, although I will assume M & J Gill are qualified veterinary surgeons who practice at Austral and Canley Heights: 1. This certificate and opinion are not verified on oath. 2. It was produced without notice so there is considerable prejudice to the applicant Council and it leaves the Court with somewhat of a dilemma. 3. The Court cannot come to any conclusion at all as to what photographs Mr Gill actually saw. Therefore, its probative value is very limited, and, as Mrs Finn submitted, little weight, if any, can be attributed to it in Class 4 proceedings. 21. I am satisfied that, on the balance of probabilities, the rooster Mrs Fokas admits she now has on her property is the same one as she had in 1997-98. However, while the Council's order referred to " the " rooster, it must mean " any " rooster on the property as the Council policy prohibits " all " roosters.

The rest of Mrs Fokas's affidavit evidence, which the Court has admitted, is directed to the noises in the environs of her property. I allowed that evidence, which, prima facie, goes to merit questions dealt with in the earlier proceedings, as I felt I should allow Mrs Fokas to attack the credit of Ms Kederian and the credibility of her evidence. However, Ms Kederian was not required for cross-examination and as noted above her evidence is unchallenged. I, therefore, feel quite comfortable to accept it.

I have, therefore, come to the conclusion that the applicant Council is entitled to the declaration it seeks.

During submissions I invited Mrs Finn to anticipate a submission on Mrs Fokas' behalf on the question of discretion.

Mrs Fokas put her case solely on the basis that she had obeyed the order and had been unfairly harassed by all concerned - some neighbours, the Council, the solicitors - despite the fact that her " new " rooster was not a nuisance at all. I must say that I could not fault its behaviour during its brief personal appearance before me, nor in its apparently lengthy sojourn today in the near precincts of the Courtroom. However, well behaved or not, roosters are not permitted in Mrs Fokas' neighbourhood, and I can find no grounds upon which to exercise the Court's discretion to refuse the injunction sought by the Council.

Once that order is made, Mrs Fokas must realise that disobedience of it has very serious implications for her. She has done much legal research during her litigation and I urge her to inform herself of the law of contempt in the near future.

While the relevant s 124 order was made 19 months ago, her appeal dismissed 16 months ago, and her Class 1 proceedings effectively concluded by my decision 13 months ago, I am prepared to allow a reasonable further period for her to comply.

Turning finally to the question of costs I acknowledge the expense and hardship to which Mrs Fokas has been put in these proceedings. Nonetheless, the Council has been entirely successful and is entitled to its costs on the normal party-and-party basis. I will, however, allow substantial time to pay.

The orders of the Court will, therefore, be: 1. I declare that the Respondent by herself, her servants, agents and assigns has not complied with a Section 124 Order 18 under the Local Government Act, 1993 issued by the Applicant on 22 December 1997 and confirmed by this Court on 30 March 1998. 2. I order that the Respondent by herself, her servants, agents and assigns comply with the terms of that order and remove from the premises at 14 English Street, Kogarah any rooster. 3. I order that the Respondent pay the applicant's costs of these Class 4 proceedings, on a party-and-party basis, in an amount to be arrived at by agreement or by assessment according to law, such costs to be paid to the Council or its solicitors, in full, within 12 months of such agreement or assessment. 4. I stay the execution of Order 2 until 30 September 1999. 5. The exhibits may be returned, with the exception of Exhibit C1 which will remain in the Court file. 30. I conclude the day's proceedings by thanking the Court staff for its tolerance in sitting on to enable the matter to be disposed of in one day.

I HEREBY CERTIFY THAT THE PRECEDING 30 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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.