Palerang Council v Banfield

Ex tempore Judgment 1On 17 July 2011 the Court made the following orders by consent: 1 The Respondent by herself, her servants, other agents and assigns be restrained from using the shed presently situation at Lot 1 DP1090531 Hazeldell Road, Mount Fairy ("the shed") for the purpose of a dwelling unless and until development consent has been granted for that purpose. 2 The Respondent demolish and remove the shed from the said Lot 1 DP1090531. 3 The Order in paragraph 1 be suspended until 14 September 2011. 4 The Order in paragraph 2 be suspended until 14 December 2011 and be discharged if development consent for the future use of the shed as a storage shed or stable has been obtained on or before that date. 5 The Respondent pay the Applicant's costs. 6 The Order in paragraph 5 be discharged if the Respondent has complied in full with the Order in paragraph 1 on or before 14 September 2011 and the Order in paragraph 2 on or before 14 December 2011. 2On 12 March 2012 the Council filed a notice of motion seeking an order that the respondent, Wendy Banfield, be punished for contempt of order number 2 of the Court's orders. 3It can be seen that order 2 required the respondent to demolish and remove the shed, but that order was suspended until 14 December 2011; and the orders allowed for discharge of the order if a development consent for the future use of the shed as a storage shed or stable was obtained prior to that date. The evidence shows that order 2 has not been complied with and the shed is still being occupied by the respondent. 4Ms Banfield has now filed by notice of motion an application for an order that the proceedings, that is, the motion for contempt, be stayed for six months. 5In order to consider her motion it is necessary to have regard to some of the facts. On 4 December 2008 the Council issued an order under s 121B of the Environmental Planning and Assessment Act 1979 requiring the respondent to cease use of the shed for the purpose of a dwelling, to demolish the shed, to remove rubbish and building material and to restore property. On 22 June 2010 the respondent lodged a development application for the erection of a steel-framed home on the property on a concrete slab. That development application was approved on 20 October 2010. On 17 June 2011 the consent orders were made by the Court as I have noted at [1] above. 6Following the consent orders, the respondent, on 21 September 2011, lodged an application to modify the development consent to allow, in addition, the erection of a temporary shed to be occupied whilst the dwelling was being erected. On 17 October 2011 the Council granted the modification application to construct and occupy the temporary shed adjacent to the site of the approved dwelling. On 3 August 2011, however, the Council had received a letter from Ms Banfield requesting variation to the consent orders for economic reasons to allow her an extension of time to comply with order 1 of the Court's orders, to remain living in the shed until 14 December 2011. On 5 August 2011 the Council's solicitor advised that the request would be considered upon receipt of the foreshadowed application for the temporary occupation of the new shed. On 14 September 2011 the Council's solicitor advised the respondent that no development application had yet been received for the temporary dwelling and warning of contempt. As noted above, that application was lodged on 21 September 2011. On 29 September 2011 the Council's solicitor advised the respondent that the Council had agreed to an extension of order number 1 to 14 December 2011. On 18 November 2011 the Council's solicitor confirmed to the respondent that the modification application was approved on 17 October and reminding the respondent of a requirement to comply with the orders by 14 December 2011, and again warned of contempt proceedings if the orders were not complied with. 7On 14 December 2011, the date for compliance with the Court's orders, the shed the subject of order number 2 had not been demolished and on that day the Council's solicitor wrote to the respondent advising that the Council had not agreed to any further extensions and again advising that the Council intends to seek enforcement of the Court's orders. 8On 21 December 2011 the respondent sent an email to the Council's General Manager requesting forbearance, which I understand to be a request for further extension of time, because of her serious financial situation. The General manager then contacted Ms Banfield's agent and told him that "the issue has been going on for three years now - you have had plenty of time to do the work". 9The respondent Ms Banfield has appeared in person in support of her motion for a stay of the motion for contempt. She has filed some evidence in support of her application which sets out her financial position. Ms Banfield has also given evidence before me. In short, her evidence is that she and her husband are currently running a business of a bookshop in Bungendore and are in the process of putting that business up for sale, which she expects will return them some $80,000.00. Secondly, she is seeking early access to her superannuation, which is said to be in the amount of some $200,000.00. Upon the happening of those events, she will then be able to erect the approved shed and temporary dwelling. She says that it is a kit shed which can be readily erected and has already purchased the sewage system and rainwater tank for that building. 10Ms Banfield also relies upon a medical certificate furnished by a medical practitioner which is clearly inadequate. The medical certificate supplied by Dr Xenie Fedoroff is dated 19 March 2012 and simply states: Due to the ill-health of Ms Wendy Banfield requiring further investigation and treatment, I would strongly recommend that the Court allow a six-month period to comply with any Court order concerning the property at Bungendore. 11The untested opinion of a medical practitioner in a three-line certificate is not sufficient of itself to secure a stay on proceedings. As to medical certificates of this type, see Jeray v Blue Mountains City Council [2011] NSWLEC 218. In that case Mr Jeray sent a letter to the Registrar of the Court saying he was unable to attend a hearing because he was suffering from a medical condition. He attached a medical certificate which read: Mr Jeray has a [blacked out] and will be unfit for work and preparation and presentation of court cases from 12/9/2011 to 30/12/2011 inclusive. The black line was a redaction of text by Mr Jeray. The Court said at [9]: The evidence in support of the application is inadequate. Even assuming the untested opinion of a medical practitioner in a two line medical certificate might, in other circumstances, provide sufficient evidence to justify the vacation of a hearing, in effect, fixed for 14 days, it does not in this case. The Court then went on to note that the factual foundation of the opinion as to the medical condition is not revealed in the certificate. The Court continued at [10]: I would have thought a medical practitioner would understand that it is no light matter for a court not to proceed to hear a case on dates fixed. One could expect a medical practitioner to apply some thought to the way in which a certificate directed to that objective might be expressed. This has obviously not been done. 12In the present case the nature of the condition which is said to support the stay is not stated in the medical certificate and even if it were stated the factual foundation for the opinion is not stated. The requirement for setting out the factual foundation for an opinion is explained in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. I thus agree with what was said by the Court in Jeray. If Ms Banfield wishes to continue to rely upon the medical opinion of Dr Fedoroff then she would have needed an affidavit which complies with the requirements of an expert's opinion as explained in Makita. The medical practitioner also should be prepared to present for cross-examination if required. 13I have noted in substance the reasons put forward by Ms Banfield in support of her motion for a stay. What troubles me is that I am unaware of why the steps she has proposed, that is, putting the business up for sale and seeking early access to her superannuation, were not taken earlier, and at least before she was required to vacate the shed. 14As I mentioned in argument, motions for contempt are a serious matter. The administration of justice is weakened if the Court's orders are not able to be observed and not only that but the whole administration of justice would be brought into dispute if court orders solemnly entered into by the parties are not observed. 15I therefore am not disposed to grant the motion for the stay brought by Ms Banfield.