Mosman Municipal Council v Kelly

CASES CITED: Fay v Roads and Traffic Authority of New South Wales (1990) 20 NSWLR 665 Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533

APPLICANT: Mr A Simpson SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT:

Mr P E King, barrister SOLICITORS: McKells

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: On 19 June 2009, I found that the respondent had breached an order made by Lloyd J on 31 July 2008 and was in contempt. I indicated that I would proceed to hear the parties on penalty and made directions in relation to the penalty hearing, culminating with a hearing next August.

2 There is now before me a notice of motion by the respondent, Mr Kelly, seeking that the directions that I made on 19 June 2009 be suspended until the disposition of an appeal to the Supreme Court of New South Wales. In submissions it became clear that the order he seeks is somewhat different, namely, an order pursuant to s 59 of the Land and Environment Court Act 1979 suspending the directions made on 19 June 2009 until determination of his application for leave to appeal to the Supreme Court against my decision that he is in contempt.

3 It has been indicated on behalf of the respondent that, if I were to make the order sought and if the Court of Appeal granted leave to appeal, then thereafter there would be a further motion pursuant to s 59 to continue the suspension of the directions made on 19 June.

4 Section 58(1) and (3) and section 59 of the Land and Environment Court Act 1979 provide as follows: " 58 Class 4 proceedings - appeals (1) Where a party to proceedings in Class 4 of the Court's jurisdiction is dissatisfied with an order or decision (including an interlocutory order or decision) of the Court, the party may appeal to the Supreme Court against the order or decision. … (3) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following orders or decisions of the Court except by leave of the Supreme Court: (a) an interlocutory order or decision,

(1) Where an appeal is made to the Supreme Court under this Division, either the Court or the Supreme Court may suspend the operation of any relevant order or decision until the Supreme Court makes its decision." (2) Where an appeal is made to the Court under this Division, the Court may suspend the operation of any relevant order or decision until the Court makes its decision."

5 It may be noted that under s 59(1) the relief now sought in this Court might alternatively be sought in the Supreme Court.

6 The respondent's notice of intention to appeal to the Supreme Court was filed today, 23 June 2009. It conventionally states "The appellant intends to commence appeal proceedings within 3 months after the material date, that is on or before 19 September 2009".

7 A letter from the respondent's solicitors, McKells, to the council's solicitors, Pikes Lawyers, of 22 June 2009, gave notice that they had received instructions to appeal my contempt decision, attached the notice of intention to appeal to be filed and served next day, and stated that they would shortly serve a summons and summary of argument. They sought the council's solicitors' consent to an order that the Court suspend the operation of the directions made on 19 June 2009 pending the outcome of the appeal, with a view to saving costs and in the interests of justice in the particular case.

8 The council's solicitors replied by letter of the same date, stating that the council opposed any order to suspend the operation of those directions.

9 The draft notice of appeal in evidence says that the appellant appeals from the whole of my decision of 19 June 2009 and, subject to an order granting an extension of time, from the whole of the judgment of Lloyd J of 31 July 2008. A number of appeal grounds are set out in relation to what is effectively two appeals.

10 The respondent submits that my directions should be suspended pursuant to s 59(1) for the following reasons: (a) the matters raised by the draft notice of appeal are substantive and not frivolous; (b) the matters raised by the grounds of appeal include matters of unresolved differences between judges of this Court. (c) delay in concluding the contempt proceedings should not bar an order for suspension because: (i) there was significant delay by the council in making the contempt application. The application was made six months after Lloyd J's orders were made and two months after the time for compliance with that order had expired. This was also some two years after the original order of Jagot J, which the order of Lloyd J of 31 July 2008 varied; (ii) the delay as sought at the present time is relatively short and enquiries indicate that it should be no more than about three months for the leave application to be heard and a decision obtained on that leave application; (iii) there would be prejudice to the respondent if the directions were not suspended because, if the contempt proceedings are finalised by the hearing on penalty and determination of penalty, then there is no point in seeking leave to appeal and there would then be an appeal available as of right. I think it is also said that if an extension of time is granted to appeal against the order of Lloyd J, and that appeal were successful, then that would establish that his Honour's order was a nullity and would take away the foundation for the contempt proceedings; (d) there is no prejudice to the council in suspending the directions that I made. 11 The council opposes suspension of my directions. The council says that it is concerned with the spectre of delay during any appeal period. The council submits that, contrary to the respondent's submissions, it did not delay unduly in bringing the contempt proceedings. It points out that Lloyd J's order expired on 30 November 2008 and that the council wrote to Mr Kelly thereafter before commencing the contempt proceedings.

12 It is true that there will be expense involved in proceeding to a hearing on penalty which, if the respondent were successful on its proposed appeal, would be wasted.

13 However, the issue of principle that concerns me is whether it is appropriate to stop contempt proceedings halfway through, after a decision that the respondent is in contempt but before the hearing on penalty while the respondent seeks leave to appeal that decision.

14 The respondent has referred me to one authority, Fay v Roads and Traffic Authority of New South Wales (1990) 20 NSWLR 665, which I am told was approved in Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533. I do not see anything in Fay which casts any particular light on how the discretion under s 59(1) might be exercised in a case such as the present. No case has been drawn to my attention in which it has been suggested that it is appropriate to suspend the operation of directions for a penalty hearing following a finding of contempt while the contemnor pursues appeal rights. 15 An analogy may be drawn with suspending the operation of directions in relation to sentencing in a criminal matter after conviction. I do not think that it would normally be appropriate in a criminal case to do so pending the outcome of an appeal against conviction. Similarly, in a civil case where liability and damages are assessed separately, I do not think it would normally be appropriate to suspend directions for the hearing on damages following the finding of liability while a party pursues an appeal in relation to the matter of liability.

16 There is much to be said for the view that, normally, proceedings should be taken to finality without any such delay. Of course, there are exceptions, such as where refusal to suspend an order would render the appeal futile or where suspension of an order is necessary to preserve the subject matter of proceedings; but they are not this case.

17 I do not accept that there was unreasonable delay by the council in commencing the contempt proceedings. It was reasonable for the council to have written to Mr Kelly after expiry of the time for compliance with Lloyd J's order before commencing the contempt proceedings. Even if it be assumed that the proposed appeal is not frivolous, I do not think that the other discretionary matters raised by the respondent outweigh the issue of principle to which I have referred.

18 For these reasons the respondent's notice of motion of 23 June 2009 is dismissed. 19 Upon my pronouncing that order, the respondent suggested that it might be appropriate to stand over the notice of motion rather than dismiss it. I think, however, that it is appropriate to dismiss it.

20 By consent, I vary direction (5) made on 19 June 2009 so that it reads as follows: "The parties are to proceed by 4pm on 24 June 2009 to the registry to obtain a one day hearing date for the penalty hearing before me in August 2009 if available, otherwise as soon as possible thereafter."

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