Port Stephens Council v Fraser

LEGAL REPRESENTATIVES: APPLICANT Ms A Pearman (Barrister)

IN THE LAND AND MATTER No. 40126A/98 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 7 April 2000

Port Stephens Council Applicant v Norman J Fraser Respondent JUDGMENT

On 24 June 1998, an application class 4 was filed in this Court against the respondent. The orders sought to restrain him from using a property known as lot 40 in deposited plan 808163, being land known as the corner of Medowie and Richardson Road, Medowie ("the land") for certain purposes namely development, being the construction of a go-kart racing track and the use thereof.

On 26 July 1998 the respondent lodged a combined application for a Development and Construction Certificate for the land with the Port Stephens Council ("the council"). The proposed development was described as a recreation area for go-kart tracks and motor cross push bike circuit. Due to certain requirements of the council that development application was not finally considered until 28 April 1999. It was determined by the refusal of consent.

On 2 June 1999 consent orders were made by this Court. The order restrained the respondent from carrying out or causing to be carried out development being the use of land for the purpose of go-kart racing activities.

The present proceedings relates to a notice of motion filed on 21 January 2000. It was accompanied by a statement of charge dated the same day which alleges that the respondent is guilty of contempt of Court because the respondent has carried out, or caused or permitted his servants or agents to carry out development being the use of the land for the purposes of go-kart racing activities contrary to Order 1 of the Court's orders of 2 June 1999. In the original order the respondent and his servants or agents were included in the restraint.

The particular matters upon which the council relies relates to two incidents on separate days. The first incident concerns Sunday the 12 September 1999, when it is alleged that a number of persons were present on the land from approximately 11.30 am. Witnesses called by the council observed three or four go-karts proceeding around the track on the land. A little later in the day it was noticed by a witness, Lisa Ehmann, that the activity increased. From approximately 12.30 pm she observed four go-karts participating in the activity. She specifically observed that the go-karts line up across the track and then start together and proceed around the track for about ten minutes. At about 2.30 pm on the day, she observed four go-karts again line up and all start together. It is estimated that the activity continued till about 3 pm. In addition, Ms Ehmann heard loud squealing and screeching of tyres and could hear a loud buzzing noise which reached a very high pitch, emanating from the go-karts.

Mrs Julianne Lynch who lives near the land was also troubled by the go-kart activity. When she heard the sound of go-karts as she travelled by car from her house to verify the source. Between 1 pm and 2 pm she heard the noise of the go-kart engines increase and the high pitch sound of 'screeching' tyres. In respect of those matters Mrs Ehmann made a complaint to the Environmental Protection Authority as did Mrs Lynch.

The respondent has pleaded not guilty to any breach of the order on that day.

The second incident relied upon by the council as constituting a contempt of Court, occurred on 21 October 1999. On that day two witnesses, Mr Ehmann and Mr Lynch, who were in their homes, heard the noise of a go-kart engine emanating from the land. Mr Lynch, who is a shift worker, had been asleep and woke at about 12.20 pm on that day by the noise of a motor. He dressed and then proceeded by car to the respondent's property where he observed a white coloured go-kart being driven around the track.

Mr Karl Ehmann, a pharmacist, also heard the noise and noticed that it was particularly loud. From his observation he could see only one white go-kart proceeding around the track.

The respondent has pleaded not guilty to any breach of the Court's order on that day.

The respondent has not given evidence. There has, however, been a witness Mr Derek Pascoe called for the respondent who is able to testify as to the events on the first occasion, namely Sunday 12 September 1999. The witness is an acquaintance of the respondent and he manages a motel in which the respondent has an interest. He has sworn that on 12 September 1999 he and twelve other persons went to the property. Those persons comprised the managers of employees of the motel, known as the Motto Farm Homestead Motel, with family members including teenage children. The day's activities included a barbeque lunch and the riding of go-karts on the bitumen track on the property. Mr Pascoe said that no more than four go-karts were used at any time. In his affidavit he denied that any racing activity took place on that day but acknowledged that laps were done using four go-karts. He says that there were no racing manoeuvres and overtaking was simply for the purpose of moving past some of the slower karts, which he said were driven at a very low speed at least when the children were driving.

Prima facie therefore, it would appear that no racing activity was conducted on that day. However Mr Pascoe's oral evidence in cross-examination proved to the contrary. He acknowledged that he did not observe the track all the time as he was involved in other activities. He provided, he said, an instruction to his teenage children, ' not to race flat out' . That evidence, corresponds with the evidence of the prosecution witnesses who said that the go-karts were apparently being used for a type of racing activity. Mrs Ehmann observed that the karts were going round the track as if they were racing. Mrs Lynch observed the go-karts were travelling at speed together.

The combination of Mr Pascoe's instructions to the drivers 'not to race flat out' and the evidence of both Mrs Ehmann and Mrs Lynch establishes that the go-karts were racing or involved in a racing activity and there was a type of competition on the day.

On 21 October 1999 one vehicle was being driven around the track but there is no evidence of competition, nor of go-kart racing activities. A race does not necessarily mean that there are other competitors.

Mr Bruce Naghten, a town planner and consultant was instructed in October 1999 to obtain a modification of an existing development consent number D1672/97 which approved the use of the subject land as a driver training facility.

Mr Naghten also received an instruction on or about 20 October 1999 from Mr Fraser to seek consent from the council to use the go-kart track on the subject land in order to test a go-kart.

On 21 October, Mr Naghten, telephoned Mr Paul Douglas of the council. There is a factual dispute concerning the conversation that took place between Mr Naghten and Mr Douglas. Mr Douglas recalls Mr Naghten stating that Mr Fraser ' wished to race some go-karts on the property tomorrow' . Mr Douglas recalls responding to Mr Naghten words to this effect, ' But you can't do that, there is a Court order in place which prevents you from racing go-karts on the property' to which Mr Naghten replied, ' Look we can sort this whole mess out' . Mr Douglas says he vividly recalls the conversation since he considered it strange that such a request was made when there was an existing Court order restraining that activity.

Mr Naghten gives a different version of the events. According to Mr Naghten he asked, ' Norm would like to test a go-kart at his Medowie property tomorrow, is that okay? You may be aware that we intend to lodge an application to modify the existing development consent for the driver training facility' . Mr Douglas is alleged to have said, ' Yes that will be all right' .

Mr Naghten says that he was not informed by the respondent of the existence of the Court order until a much later date. It is astounding that Mr Naghten was not so advised by the respondent since it affected the very property for which he was seeking permission for an alternate use. The Court concludes that Mr Naghten was asked by the respondent to make the inquiry on his behalf whilst oblivious of the existence of the Court orders. Although intent is not necessarily an ingredient in contempt charges it is nevertheless a factor which the Court takes into consideration in assessing whether the breach is accidental. In Australian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 113, the High Court of Australia stated that a breach of a Court order must be proven to be more than casual, accidental or unintentional to constitute a contempt.

In determining an application for contempt, the Court is required to apply an objective standard of proof: see Regina v Odhams Press Limited (1957) 1 QB 73; ex parte Attorney General (1957) 1QB 73 at 81. In Attorney General v Butterworth (1963) 1QB 695 Lord Justice Donovan at 725 observed as follows:- The question is whether the respondents' action was calculated to so interfere, that is interfere with the course of justice and this involves a consideration of not of their state of mind on this particular point but of the inherent nature of their act.

The Court is required to observe the evidence and consider it against an objective standard. The standard of proof required for matters of contempt is a criminal standard of proof: see Witham v Holloway (1995) 183 CLR 525, particularly the concluding remarks of McHugh J at 550.

The order covers go-kart racing activities, that is any activity which is part of, associated with, or incidental to go-kart racing. The term racing does not require the use of a chequered flag, the award of prizes and such matters as has been suggested by the respondent's counsel. A race can be informal, it can be social, it can take place in any activities where there is a degree of competition. It can take place even where there is merely a race against time. A person competing against time has been held to be in a race: see Lynall v Longbothom 2 WILS KB 36; (1756) 95 ER 671.

The Court is satisfied that the events of 12 September 1999 can readily be classified as racing activities and the charge of contempt of Court in relation to that day is satisfied. The Court could not be satisfied that the event of 21 October 1999 constitutes contempt of the Court's order.

Section 67 of the Land and Environment Court Act 1979 provides as follows:- The Court shall have and may exercise the functions vested in the Supreme Court in respect to the following matters, (a)-(c) not relevant (d) the apprehension, detention and punishment of persons guilty of Contempt or of disobedience to any order made by the Court or of any process issuing out of the Court. Pt 55 r 13 of the Supreme Court Rules 1970 New South Wales which apply in this Court by virtue of Pt 6 r 1 of the Land and Environment Court Rules 1996 provides that, ' the punishment may be, amongst other things by way of fine' . In this case the prosecution seeks a fine and does not seek imprisonment.

In Camilleri Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 the President at 700 listed numerous matters which should be taken into consideration in assessing penalty. One matter is whether the respondent is contrite and remorseful as demonstrated by a plea of guilty in which event a substantial reduction in penalty is merited.

Another matter for consideration is that orders of the Court are to be obeyed. If not obeyed the very foundation upon which our civilised legal system relies could be undermined. Respect for Court orders is therefore essential and breach requires a penalty to reflect the gravity of a breach of a Court's order.

The respondent has been a long term resident in the area of Newcastle or Port Stephens. I am informed that he has had no other problems with the law. He is a businessman and a former speedway champion. He has recently obtained a modification of his existing development consent of the lands for use of the property as a driver/training facility.

The Court is satisfied that a monetary penalty is appropriate. Had it not been for the fact that the respondent has been a law abiding citizen a substantial fine would have been imposed.

1. The respondent, Norman James Fraser, is found guilty of contempt of the Court's order of the 2 June 1999.
2. The respondent is fined the sum of $15,000 to be paid to the Registrar of the Court within one month of today's date.
3. The respondent is ordered to pay the costs of the prosecutor as agreed or as assessed.
4. The exhibits be returned.

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.