Newcastle City Council v Leaway Pty Ltd and Ors

Land and Environment Court (NSW)|1993-04-23|Before: Cowdroy J

Newcastle City Council v Leaway Pty Ltd and Ors [2005] NSWLEC 619 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Newcastle City Council FIRST RESPONDENT Leaway Pty Limited PARTIES : SECOND RESPONDENT Wayne Paddison THIRD RESPONDENT LWS Waste Services Pty Limited

KEY ISSUES: Contempt :- whether orders sufficiently clear - statement of charge - absence of particulars - validity of charge

Environmental Planning and Assessment Act 1979 s 78A(8)(a) Environmental Planning and Assessment Regulation 2000 cl 4, Sch 3 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1 Supreme Court Rules 1970 Pt 55 r 7

Athens and Anor v Randwick City Council [2005] NSWCA 317; Attorney-General v Punch Limited and Anor [2003] 1 AC 1046; Australian Building Construction Employees and Builders Labourers' Federation and Ors v Viner and Ors (1982) 63 FLR 253; Australian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; Carew Reid v Carew Corporation Pty Ltd (SC(WA), Full Court, 23 April 1993, unreported); Castledine v Boronga Pty Ltd & Ors [2000] WASC 215; Chiltern District Council v Keane [1985] 1 WLR 619; Concrete Constructions Pty Ltd and Anor v Plumbers and Gasfitters Employees' Union and Anor (No 2) 1987 15 FCR 64; CASES CITED: Coward v Stapleton (1953) 90 CLR 573; Harmsworth v Harmsworth [1987] 1 WLR 1676; Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; Kirkpatrick v Kotis (2004) 62 NSWLR 567; Levenstrath Community Association Inc v Tomies Timber and Anor (2000) 108 LGERA 176; Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117; P A Thomas & Co and Ors v Mould and Ors [1968] 2 QB 913; Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732

DATES OF HEARING: 27/10/2005, 28/10/2005, 31/10/2005

APPLICANT J M Ireland QC with J Maston SOLICITORS Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENTS D Brooks (agent) SOLICITORS n/a

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

LEAWAY PTY LIMITED ACN 059 919 783 First Respondent

LWS WASTE SERVICES PTY LIMITED ACN 003 865 147 Third Respondent

JUDGMENT 1 Cowdroy J: On 31 October 2005 the Court made orders in these proceedings and indicated the reasons for the orders would be published at a later date. This judgment sets out the Court's reasons for its decision.

2 By notice of motion dated 22 July 2005 ("the contempt motion"), the applicant ("the Council") charges that the first respondent is guilty of contempt of orders made by this Court on 29 June 2004 ("the orders") and that the second respondent aided and abetted, counselled or procured a breach of the orders.

3 By order of the Court made 3 August 2005, LWS Waste Services Pty Ltd was joined as the third respondent to the notice of motion. The Council charges against the third respondent that it aided, abetted, counselled or procured a breach of the orders.

4 The orders restrained the first and second respondents from using premises known as 55 Throsby Street, Wickham ("the subject premises") "as a waste management facility or waste transfer station or otherwise than in accordance with the development consent granted by the applicant to Development Application No 00/1738 without development consent being obtained for such uses".

5 Development Consent No 00/1738 was issued by the Council on 27 September 2000 ("the consent"). Subject to conditions, it authorised the use of the following development on the subject premises: Alterations to existing building and use for storage, sorting and distribution of secondhand building materials.

6 By notice of motion dated 27 October 2005, the respondents seek an order that the contempt motion be dismissed on two grounds namely: a) The motion is inherently flawed in that it fails to provide adequate particularization of the contempt. b) The alleged contempt is inherently flawed in that the order of the Court in which it is alleged the Respondents are in contempt of is not clear and unambiguous.

7 Attached to the applicant's notice of motion is a statement of charge which is reproduced as Schedule 1 to this judgment. In summary, it alleges that between 9 May 2005 and 26 May 2005 ("the nominated period"), the first respondent used the subject premises:

(i) as a waste management facility, without development consent; (ii) as a waste transfer station without development consent; (iii) for the storage and distribution of waste, not being second hand building materials, without development consent.

8 The second respondent is charged with having aided, abetted, counselled or procured such conduct.

9 Additionally it is alleged that since 6 May 2005, the first and second respondents have been in continuous contempt of the Court order dated 8 April 2005 which imposed a fine of $50,000 jointly and severally on the first and second respondents, which has not been paid.

10 The statement of charge alleges that in the nominated period, the third respondent aided, abetted, counselled or procured the use of the subject premises by the first respondent contrary to the orders "by marketing and advertisement" of the uses of the subject premises set out in (i)-(iii) above.

11 The respondents submit that the orders are imprecise and contain terms which are ambiguous. In particular, the respondents point out that there is no definition of "waste management facility" or "waste transfer station" contained in the orders, despite the fact that these activities are prohibited in their entirety by the orders.

12 The respondents submit that the development consent allows them to bring "second hand building materials" to the subject premises and to process them there. The respondents submit that no definition of "second hand building materials" is provided in the consent or in the orders. Accordingly, the respondent is entitled to bring to the subject premises and process any materials which constitute "second hand building materials". It is unclear precisely what materials the respondents are prohibited from receiving on the subject premises pursuant to the orders.

13 To the customers of the first respondent, second hand building materials are waste materials. The respondents submit that on a commonsense understanding of the terms "waste management facility" or "waste transfer station", those terms might encompass activities lawfully conducted by the respondents pursuant to the consent.

14 In support of their submission, the respondents refer to the comments of McClellan J in an earlier judgment in these proceedings delivered on 23 August 2004. At paragraph 9 of the judgment, his Honour said: The consent which was granted by the Council for the present site was determined on 27 October 2000. It provided consent for alterations to the existing building and use of the storage, sorting and distribution of second hand building materials. I am satisfied that the activity, but to the extent that green waste is coming to the site, meets that description.

15 The respondents submit that his Honour's finding establish that their activities, except with respect to green waste, were lawful.

16 The respondents submit that orders must provide clear definition of what is, and what is not, prohibited on the subject premises (see P A Thomas & Co and Others v Mould and Others [1968] 2 QB 913 at 922) and that the failure to do so means the orders are ambiguous with respect to the obligations of the respondent. In these circumstances, the orders are inherently flawed. 17 The respondents also submit that the statement of charge does not provide details of the alleged breaches of the orders. In the absence of any definition of "waste management facility" or "waste transfer station", it is not possible from the statement of charge to determine the precise activities which the Council contends are unlawful.

18 The respondents say that prior to the filing of the Council's notice of motion they received no communication from the Council which indicated any specific activity engaged in by the respondents which breached the orders. In the absence of such indication, and in the absence of any particulars contained in the statement of charge, the respondents submit that the statement of charge is defective. They rely upon the observations of the Full Court of the Supreme Court of Western Australia in Carew Reid v Carew Corporation Pty Ltd (SC(WA), Full Court, 23 April 1993, unreported).

19 The Council submits that the contempt in these proceedings relates to a breach of a specific order of the Court which can be readily ascertained. This is in contrast to the position in Carew Reid where the alleged contempt did not arise from the breach of an order of the Court but was contempt in the face of the Court. The Council submits that for a contempt of this kind, greater detail is required in the statement of charge.

20 The Council also refers to the decision of the Full Court of the Federal Court of Australia in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155. The Council also submits, adopting the observations of Campbell J in Kirkpatrick v Kotis (2004) 62 NSWLR 567, that the Court is entitled to consider the surrounding circumstances in construing the orders which were made by consent.

21 The Council submits that the statement of charge alleges that the respondents were restrained from using the subject premises otherwise than as provided by the orders and that in the nominated period the respondents used the premises for purposes which were not permitted.

22 The Council submits that a statement of charge in contempt proceedings may be amended, and refers to Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 257 and Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732.

23 The contempt motion has been issued in Class 4 of the Court's jurisdiction pursuant to Pt 55 of the Supreme Court Rules 1970 ("SCR") (now repealed). Part 6 r 1 of the Land and Environment Court Rules 1996 ("the LEC Rules") adopts Pt 55 of the SCR. By operation of the LEC Rules (Amendment No 14) 2005, Part 55 SCR continues to be adopted by the LEC Rules according to the form and content immediately prior to its repeal.

24 Part 55 r 7 makes provision for a statement of charge to be filed with the notice of motion alleging contempt.

25 The orders of a Court must be clear and unambiguous so that enforcement proceedings may be taken to remedy any breach. In Attorney-General v Punch Ltd and Anor [2003] 1 AC 1046 Lord Nicholls of Birkenhead said (at p 1055):- An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. See also P A Thomas & Co and Ors v Mould and Ors [1968] 2 WB 913 at 922.

26 In Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87, Luxmoore J (at 95-6) said:- If the Court is to punish any one for not carrying out its order the order must in unambiguous terms direct what is to be done. In saying this I do not intend to say anything contrary to what was said by Chitty J in Attorney-General v Walthamstow Urban Council (1895) 11 Times LR 533, that it was the duty of the defendants to find out the proper means of obeying the order. Of course, there is such a duty on a defendant where the order either prohibits or orders the doing of a specific act. In the case mentioned the order restrained the defendant council from discharging sewage into a particular brook so as to create a nuisance that was definite enough in its terms.

27 In Athens & Anor v Randwick City Council [2005] NSWCA 317, the Court of Appeal was required to determine whether the order founding the charge of contempt was sufficiently certain. Hodgson JA, with whom Santow and Tobias JJA agreed, said (at [27]ff): The construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. First, what does the order require, on its true construction? And second, is this sufficiently clear to the person affected by the order to support enforcement of that order against that person?

What do the orders require on their true construction?

28 The orders were made by consent on 29 June 2004 and relevantly provide as follows:

The first and second respondents, by themselves, their servants and agents, be restrained from using Lot 1 DP 982092, Lot 1 DP 909299, Lot 4 DP 666964, Lot 4 DP 666965 and Lot 3 DP 668145 known as 55 Throsby Street, Wickham, as a waste management facility, or waste transfer station or otherwise than in accordance with the development consent granted by the applicant to Development Application No 00/1738 without development consent being obtained for such uses pursuant to Part 4, Environmental Planning and Assessment Act, 1979.

29 The orders do not define the terms "waste management facility" or "waste transfer station". Without reference to extrinsic material, these terms are unclear. In Athens, Hodgson JA said at [28]:

There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract: see Kirkpatrick at [38]-[45] and cases there cited. In my opinion, it is also plain that, in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings.

30 Santow JA similarly observed at [136]: When the meaning of an order is ambiguous, and that ambiguity is not able to be resolved solely by reference to the judgment itself, resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context. Thus it can be highly relevant to know what the successful claimant sought by way of relief. The judgment may need to be understood by reference to how the parties put their cases.

31 In that case, the Court held that the definition of "backpacker" was to be construed in accordance with the definition contained in the local environmental plan, since that had been the basis on which the order was made.

32 In this case, because the orders were made by consent there is no judgment giving rise to the orders to which reference might be made to determine the meaning of the orders. Accordingly the Court has had regard to the Class 4 Application and the points of claim which formed the basis of the Council's prayers for injunctive relief in these proceedings, in order to assist in the interpretation of the orders.

33 The Class 4 Application (as amended) sought to restrain the use of the subject premises "as a waste management facility or as a waste transfer station, or for the storage, sorting and distribution of general and/or household waste, soil, vegetation, and/or for the receipt or collection of building materials not for the purpose of storage, sorting and distribution".

34 The Council's points of claim in the Class 4 Application allege that: 16. The Consent does not permit the use of the Land as a waste management facility or works or as a waste transfer station, or for the storage, sorting and distribution of general and/or household waste, soil, vegetation, and/or for the receipt or collection of building materials not for the purpose of storage and/or sorting on the site, or for distribution from the site within the meaning of the Consent.

The Consent was not in respect of designated development and in particular does not authorise the use of the Land for the purposes of a waste management facility or works within the meaning of Schedule 3 of the Environmental Planning and Assessment Regulation ("the Regulation").

35 Part 1 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 includes a definition of "waste management facilities or works", which relevantly provides:- (1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and: (a) that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste: … (iv) that comprises more than 200 tonnes per year of other waste material, or (b) that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and: … (iii) that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or (d) that are located: (i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or (ii) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or (iii) within a drinking water catchment, or (iv) within a catchment of an estuary where the entrance to the sea is intermittently open, or (v) on a floodplain, or (vi) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic. Part 4 of Sch 3 includes a definition of "waste" as follows:- "waste" includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale.

36 There is no evidence that the definition "waste management facility" in the orders was intended to be other than the definition in Sch 3 of the EP&A Regulation. There is no definition of "waste transfer station" in the EP&A Regulation although its meaning can be discerned from paragraph (b) of the definition of "waste management facility". Although the Council submitted that such terms should be given their ordinary meanings, the Court finds that such technical expressions must be the subject of specific definition. There is no "ordinary meaning" of terms such as "waste management facility" and "waste transfer station". In the context of the orders, the source of these definitions was clearly the EP&A Regulation and the Court is satisfied that the only reasonable construction of the orders would require adoption of these definitions.

Were the orders sufficiently clear to the respondents?

37 The second question formulated in Athens is whether the orders were sufficiently clear to the respondents to support enforcement of the orders against the respondents. Hodgson JA stated (at [36]) that: It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.

38 The orders, being made by consent, were made otherwise than as the result of a contested hearing and there is no evidence that the respondents were aware of the precise activity which was sought to be restrained. The Court also notes the observations of McClellan J in August 2004 to the effect that the materials being received by the respondents at the subject premises were lawful, save for green waste.

39 Unfortunately, the inclusion of the definitions as contained in the EP&A Regulation gives rise to uncertainty. The first respondent's operations, even if solely confined to second hand building materials and conducted in accordance with the consent, may constitute a waste management facility as defined in the EP&A Regulation. The materials handled by the respondents would clearly fall within the definition of "waste" in the EP&A Regulation. It appears to the Court that their operations would also fall within the definition of waste management facility, in particular paragraphs (d)(vi), (a)(iv) and (b)(iii).

40 There is no evidence before the Court as to whether the first respondent's operations fall within any of the categories of paragraph (d) of the definition of "waste management facility" contained in the EP&A Regulation, but the previous motion for contempt in relation to neighbourhood amenity would suggest that at least subparagraph (vi) thereof may have application. The Court refers to the judgment of McClellan J dated 23 August 2004 at paragraph 8.

41 With respect to paragraphs (a)(iv) and (b)(iii) of the definition of "waste management facility", the consent does not refer to any weight limit and accordingly the operations may fit into either or both of these categories.

42 Further, it is clear that the respondents understood waste to be central to the operation of the proposed business as is apparent from the development application. A statement of environmental effects prepared by Riq de Carvalho, Chartered Architect accompanied the application, which included the following:- (J) Waste The proposed facility is all about waste. It is proposed to sort secondhand building material in the building storing sorted material for possible reuse in bins, spread around the perimeter of the building. There would not be any putrescible waste generated or brought onto the site. Asbestos identified in the process would be disposed of at the Council's waste treatment facility at Summerhill in accordance with the Workcover and Council's requirements for disposal of this material.

43 The problem created by the terminology of the orders is that the first respondent may not be able to comply with the orders with respect to a "waste management facility" and "waste transfer station" and simultaneously operate its business pursuant to the consent. The Court considers that at the very least, the position in relation to the existing consent makes the orders ambiguous and uncertain, and the scope of the prohibition "obviously open to dispute": Attorney-General v Punch. There is a real dispute as to what is prohibited and what is allowed by the orders. In these circumstances, the Court is satisfied that, at least in relation to paras 1(i) and (ii), 2(i) and (ii) and 3(i) and (ii), which relate to the prohibition upon operations as a "waste management facility" or "waste transfer station", the orders cannot be enforced.

44 However, paras 1(iii), 2(iii) and 3(iii) relate to the compliance of the respondents with the consent. In Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143, Lindgren J said: The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead … must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order or injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking: cf Watkins v A J Wright (Electrical) Ltd [1996] 3 All ER 31 .

45 On the basis of Lindgren J's observations, the Court considers that the portion of the order relating to compliance with the consent, when considered discretely, is sufficiently clear. The Court would enforce the orders confined to the lack of compliance with the consent, provided the statement of charge is properly formulated. Although the orders do not define what constitutes "second hand building materials", the onus falls upon the respondent to ascertain what is required to comply with the consent: see Kirkpatrick v Kotis (2004) 62 NSWLR 567 at [55].

46 The respondents allege that the charge of contempt has not been adequately particularised.

47 Nicholls LJ in Harmsworth v Harmsworth [1987] 1 WLR 1676 states the relevant test concerning the adequacy of particulars in contempt charges as follows (at 1683):- … does the notice give the person alleged to be in contempt enough information to enable him to meet the charge?

48 In Chiltern District Council v Keane [1985] 1 WLR 619, Donaldson MR said at 622:- The notice of motion was personally served on Mr Keane, but it only stated the grounds of the application to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court.

The particular undertakings and injunctions in this case cover a wide range of activities. Mr Keane was entitled to know whether it was said by the council that he was in breach of every single requirement of those orders or only some, and if so which, of them and the notice failed to give him that information.

49 The same principle was referred to by the High Court of Australia by Williams CJ, Kitto and Taylor JJ in their unanimous judgment in Coward v Stapleton (1953) 90 CLR 573 at 579-80 where their Honours said:- … it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard (1868) LR 2 PC 106 at p 120; R v Foster; Ex parte Isaacs [1941] VLR 77 at p 81. The gist of the accusation must be made clear to the person charged …

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.

50 The High Court has also held that an alleged contemnor is entitled to "the fullest notice of the conduct that is alleged against him": see Australian Meat Industry Employees' Union and Others v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 116 per Gibbs CJ, Mason, Wilson and Deane JJ.

51 In Harmsworth, Nicholls LJ said that lengthy particulars may be required in which case they could be included as a schedule or addendum to the statement of charge. However, all the information is required to be contained "within the four corners of the notice itself" (at 1683).

52 In Australian Building Construction Employees and Builders Labourers' Federation and Others v Viner and Others (1982) 63 FLR 253, Evatt and Deane JJ concluded that the finding of contempt against the appellant should be set aside because the statement of charge contained no distinct statement of the particular charge of contempt of court (at 278).

53 In Concrete Constructions Pty Ltd and Another v Plumbers and Gasfitters Employees' Union and Another (No 2) (1987) 15 FCR 64, Wilcox J, having considered the statement of charge and the extensive particulars provided in such statement said (at p 73):- The second question is whether the statements of charge sufficiently specify the alleged breaches. I think that they do. In each case the charge sets out the relevant orders and then alleges, in positive terms, that the respondent did the enjoined act. In essence, the complaint is that, the respondent being told to refrain from particular conduct, the respondent in fact committed that conduct. This is a clear enough allegation. It is true that, without more, the respondent would not know whether it is the case of the applicant that it carried out some positive act amounting to breach, and if so what act, or whether it is said that there was a contravention by the failure of the respondent to take a positive step necessary to bring to an end the condition of maintaining the ban. But that is the function of particulars; and in each of these cases particulars were included in the charge.

54 The statement of charge in the present proceedings contains no particulars. It does no more than repeat the orders and allege that they have been breached. A comparison with the statement of charge in Concrete Constructions demonstrates the deficiency in the statement of charge now before the Court. Unless such particulars are provided, the respondent is not given "enough information to enable him to meet the charge" (see Harmsworth at 1683). The alleged contemnor should be informed of the precise manner in which the breach is alleged to have occurred. The Court is satisfied that the original statement of charge is seriously defective. The statement of charge contains insufficient detail to sustain the charge of contempt.

55 During submissions the Council provided the Court with a proposed amended statement of charge, in the event that the Court found the existing statement of charge deficient. The amended statement of charge made minor changes to the form of the charges but did not incorporate more detailed particulars. Subsequently the Council gave notice that it intended to rely upon a further amended statement of charge which incorporated detailed particulars in addition to the changes contained in the amended statement of charge.

56 As mentioned above, it is an established principle that a notice of motion alleging contempt must "contain all necessary particulars in relation to the substance of the allegation within the four corners of the document" (Carew Reid per Malcolm CJ; see also Harmsworth at p 1683). In Carew Reid, Malcolm CJ also stated: In my opinion it is quite clear from the authorities that any deficiency in the particulars going to the substance of the charge of contempt cannot be made up by resort to the affidavit evidence.

57 In Timania, Finkelstein J, having referred to Lane, said (at [37]):- There is a view that the circumstances in which an amendment will be allowed are narrow. In particular that an amendment will not be allowed to cure a "seriously defective" charge… It is unnecessary in this case to decide whether the court's undoubted power to amend a charge should be confined in any way. Here the amendments should be allowed because they will cause no prejudice. Nor will they revive a "seriously defective" charge. In any event, it is in the interest of justice that faulty drafting which did not affect how the respondents conducted their defence at trial should stand in the way of the court's power to punish a serious contempt.

58 In Castledine v Boronga Pty Ltd & Ors [2000] WASC 215 in rejecting an application to amend the charge by providing further particulars, Anderson J said (at [25]-[26]):- In the case now under consideration by me, the originating summons charging the contempt contains no particulars whatever. There is nothing on the face of the summons which identifies the undertaking or specifies the breaches of it, even in general terms, let alone with the precision which is required.

In the hearing before me, the plaintiff sought leave to amend the originating summons to cure this basic defect. It is clear, however, that leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial … Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment.

59 On the basis of these authorities, the Court is satisfied that an amendment to the statement of charge could not remedy the defects in the original notice of motion and statement of charge alleging contempt. As found above, the statement of charge is seriously defective. Accordingly, the charges in paragraphs 1(iii), 2(iii) and 3(iii) must be dismissed.

60 This leaves the outstanding charges against the first and second respondents contained in paras 1(iv) and 2(iv), namely that each has been in "continuous contempt" of the orders of the Court dated 8 April 2005 which imposed a fine of $50,000, since such fine remains unpaid. This is a discrete charge to the charges concerning the use of the premises.

61 The Court considers that such charge is clear and unambiguous and in its terms is sufficiently clear without the need for further particulars. The Court does not strike out such charge, but will allow the Council an opportunity to determine whether it wishes to continue with these proceedings, confined solely to this charge.

62 The Court is not required to determine the validity of the consent. Nevertheless, in the course of formulating its reasons, the Court has had reason to scrutinise the consent and in doing so has become aware of potential flaws in the consent.

63 If, as discussed above, the first respondent's operations in fact fall within the definition contained in Sch 3 of the EP&A Regulation, this would mean the operation at the subject premises is properly categorised as a designated development under cl 4 of the EP&A Regulation. It is clear, however, that the development application made by the first respondent was not an application in respect of designated development. The application itself indicates that the development approval was not sought for a designated development, and the application was not accompanied by an environmental impact statement, as required by s 78A(8)(a) of the Environmental Planning and Assessment Act 1979. The Court notes that the consent fails to specify an upper limit on the quantity of second hand building materials which may be processed on the subject premises. Bearing in mind the definition of "waste management facility" in the EP&A Regulation, the failure to do so leaves open the possibility that the operations could constitute a designated development. Based upon the decision in Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176 but without making any finding as to the validity of the consent, the Court doubts that the consent has been validly granted.

64 These are the reasons for which the Court made its orders on 31 October 2005. For convenience, the orders made on that day are set out hereunder: 1. Paragraphs 1(i), (ii) and (iii), 2(i), (ii) and (iii) and 3(i), (ii) and (iii) of the statement of charge are struck out. 2. The parties be at liberty to approach the Registrar for allocation of a further hearing date in respect of paragraphs 1(iv) and 2(iv) of the statement of charge.

08/11/2005 - Incorrect proceedings number on coversheet - Paragraph(s) Coversheet

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.

(2000) 108 LGERA 176

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