Randwick City Council v Athens and Anor - [2004] NSWLEC 213 - NSWLEC 1998 case summary — Zoe

NSWNSWLEC

Randwick City Council v Athens and Anor

[2004] NSWLEC 213

Land and Environment Court (NSW)|1998-04-20|Before: Cowdroy J, Bignold J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-04-20

Before

Cowdroy J, Bignold J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

CITATION : Randwick City Council v Athens and Anor (No. 7) [2004] NSWLEC 213 APPLICANT Randwick City Council

[2]

PARTIES : FIRST RESPONDENT Peta Athens

[3]

SECOND RESPONDENT Athens Holdings Pty Limited (ACN 001 166 552) FILE NUMBER(S) : 40097 of 2000 CORAM: Cowdroy J KEY ISSUES: Contempt :- order restraining use of premises for backpackers accommodation - order requiring removal of doors and restoration of garages for the purpose of carparking. Environmental and Planning and Assessment Act 1979, s124AA Land and Environment Court Act 1979, s 20(4), s 67 LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 6 r 2 Randwick Local Environment Plan 1998, cl 49 Supreme Court Act 1970 Supreme Court Rules 1970, Pt 42, Pt 55 Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; Australian Consolidated Press Limited v Morgan (1964-1965) 112 CLR 483; O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59; CASES CITED: Randwick City Council v Athens and Anor (No. 1) [2004] NSWLEC 23; South Sydney City Council v Sharpe, Bignold J, Land and Environment Court of New South Wales, 20 April 1998; Tweed Shire Council v Mannix (1981) 50 LGRA 369 ; Witham v Holloway (1994-1995) 183 CLR 525 DATES OF HEARING: 28/01/2004; 29/01/2004; 30/01/2004; 11/03/2004; 25/03/2004; 20/04/2004; 21/04/2004; 22/04/2004; 23/04/2004; 27/04/2004; 28/04/2004; 29/04/2004 EX TEMPORE 04/29/2004 JUDGMENT DATE :

[15]

10 Mr Graham observed a noticeboard headed "Aegean Rates" which specified the charges for accommodation on a daily and weekly basis for "guys" and "girls". A handwritten sign was affixed to the front counter stating:- Weekly Rates start on Friday - Friday - everyone checking in after or before Friday must pay Daily till Friday. Due to Randwick City Council requirements all guests must be either Aust' residents, students or holders of working visas and that this address will be your main place of residency - if you comply please sign yourselves in and welcome. 11 Mr Graham took numerous photographs of the interior including of the entry hall and reception area. A brochure stand contained a variety of pamphlets advertising various services available to backpackers. A brochure advertising the "Aegean Lodge" at the address of the premises was available. The brochure describes the premises, is decorated with flags of various nations and includes a photograph of a mini-bus bearing the name "The Aegean Coogee Bay Rd Backpackers". 12 Records were also photographed by Mr Graham of reservations which were booked and confirmed. One booking made on or about 24 May 2002 was made in respect of dormitory style accommodation for a period of 3 nights. Another booking made on 11 June 2002 for accommodation in one dormitory on 14 June 2002. 13 The photographs record several registers found in the front reception of the premises. The registers were entitled "Nightly" and "Check Ins". A blue Collins Diary for 2003 was inspected which contained the name and address of residents. The records contained within the blue Collins Diary showed that many of the addresses of the guests were located in countries outside Australia. 14 On his search Mr Graham inspected and took photographs of garages 9 and 10. Each photograph shows that sliding glass doors remained in position in their tracks behind roller shutter doors. Each garage contained substantial quantities of furniture. 15 Mr Graham made an internet search on or around the 20 June 2003 by logging onto the website www.google.com.au and searched for the word "Aegean". Such search revealed the subject premises as being located under key words such as "backpack, backpackers and backpacking". With respect to the Aegean Backpackers the following notation appeared:- Aegean Backpackers HAS MOVED TO A NEW LOCATION. THIS PAGE WILL REFRESH TO OUR HOMEPAGE IN 10 SECONDS. 16 Mr Graham went to the Aegean webpage and found an advertisement for "The Aegean Lodge Licenece (sic) Boarding House". The webpage displayed international flags and advertised a shuttle pick up bus from the airport. 17 On 8 July 2003 Mr Graham attended at Sydney Visitor Centre at The Rocks, Sydney and obtained a "Backpacker Information Sheet of Backpacker Accommodation" in or around Sydney. Such information was supplied to him in response to a request for backpacker accommodation in Sydney. Such list included an entry as follows:- Area Hostel Address Phone Coogee Aegean-Coogee Bay Rd 40Coogee Bar (sic) Rd 93145324 18 On 16 July 2003 a further search on the internet was made by Mr Graham of the term "Aegean Lodge". Numerous listings on third party sites of the Aegean Lodge were under backpacker related links. Many of the listings of the premises were displayed as the "Aegean Backpackers" on some sites. 19 On 17 July 2003 Mr Graham again attended at Sydney International Airport and obtained a brochure from a stand at the Information Desk located on the ground floor of the International Terminal. At p 63 of the brochure he observed "The Aegean" was listed.

[16]

Heather Maria Thompson 20 Ms Thompson, an officer of the Department of Immigration and Multicultural and Indigenous Affairs provided evidence in a spreadsheet of the working holiday visa details of persons identified in a subpoena. The names of the persons listed in the subpoena were sourced from the blue Collins diary located in the reception of the premises and photographed by Mr Graham and from conversations held between Mr David Mulcahy, an officer of the council with several persons during the search of the premises on 16 January 2003. 21 The spreadsheet contains details of names, date of birth, visa, arrival date, flight number, departure date, airport and flight. The names provided to Ms Thompson were entered in the International Movement Database. The Database records movements received electronically from international airports derived from the scanning of passports and information contained within cards (described as International Movement Records) completed by persons arriving in Australia from overseas and from cards completed by the same persons when leaving Australia. The accuracy of the information arises from the fact that the passport is scanned. 22 Ms Thompson collated the results of her search in the spreadsheet and also obtained copies of the arrival and departure cards prepared by the named persons. Some discrepancies were shown in respect of the entries of certain persons listed in the spreadsheet. However the apparent discrepancies were explained by her as resulting from the fact that the person may leave and enter Australia during the currency of their visa, and in this respect the spreadsheet did not record every movement of the person. 23 Approximately 35 persons whose names were obtained either from the blue Collins diary or from conversations with residents at the premises were also found within the International Movement Database as working holiday visa holders who nominated themselves as visitors or temporary entrants to Australia upon their arrival and departure International Movement Records. For example the following entry was recorded on the page entitled Friday 3 January 2003 in the blue Collins diary:- MARINKA ALLAN, 30 LINKFIELD ST, REDHILL, SURREY, RHIGBW ENGLAND

[21]

Roman Wereszczynski 32 Mr Wereszczynski, Manager of Environmental Health and Building Services testified of his inspection of the subject property on 16 January 2003. A conversation took place with the first respondent, in which he denied that he was providing backpacker accommodation. The first respondent said:- We are not a backpacker accommodation. There is a sign on the front desk that says that. We are not operating illegally. We are providing budget accommodation. 33 A sign was observed in the reception area identical to that referred to in par 10 of this judgment and also the noticeboard specifying the rates for accommodation. The following sign was noted:- Weekly rates start on Friday - Friday . Everyone checking in after or before Friday must pay Daily till Friday . 34 Receipt books were photographed entitled "Nightly", "Weekly" and "Check Ins". 35 The first respondent said to Mr Wereszczynski:- I don't mind you inspecting the premises. We are operating a budget accommodation and not a backpackers. 36 The first respondent informed Mr Wereszczynski that sixty-six guests were presently at the premises. The first respondent said:- We provide budget accommodation. I have a sign at the front reception. It is not up to me to work out if the person is a backpacker or what they are. Ajoy Ghosh 37 Mr Ghosh is an expert in information technology and has had 12 years experience in the investigation of computer crime. He is also the author or co-author of two texts dealing with such subject. His evidence explains the operation of the internet, including the function of keywords, meta tags, the "Google" search engine, and the use of computer programmes. 38 Mr Ghosh explained certain terminology used in conjunction with the operation of the internet including a "universal resource locator" ("URL") which is a facility designed to make access to internet sites easier for consumers. He said that "meta tags" comprises a system used to insert information into a web page which is not normally of interest to the viewer, but was to search engines. They are used to transmit information to web programs such as search engines, of which "Google" was the most common, about the content of the web page. Mr Ghosh explained that a "search engine" enabled retrieval of information on the internet via key words. The Google search engine maintains a "cache", which is a copy of the website at the time it was catalogued by Google. As Google catalogues the internet, it takes a copy of the websites which are located by it and are stored. 39 Mr Graham, the council officer, undertook a search in Google using the word "Aegean". It produced the list of links as shown in "ADG15" being the annexure to Mr Graham's affidavit sworn 1 September 2003. 40 On 24 December 2003 Mr Ghosh attempted to access the same web sites that Mr Graham had accessed previously. The Aegean Backpackers website was unavailable and Mr Ghosh concluded that it had either been removed from the internet or rendered temporarily inaccessible. Mr Ghosh located the website entitled "The Aegean Coogee Bay Road Backpackers" website at URL www.aegeancoogee.com.au. He observed that the website could be accessed by typing the URL directly. The website however had now changed. It was entitled "Aegean Lodge Licence Boarding House", but the textual display and images were identical to those attached as "ADG16" to Mr Graham's affidavit. The meta tags Mr Ghosh found within the source code of the website included the words "backpack", "backpacker", "backpacking", "Australia", "youth hostel" and "tourism". 41 On 11 March 2004 Mr Ghosh accessed www.aegeancoogee.com.au and found that there were changes from his previous visit. Such changes included the title bar changing from displaying "Aegean Lodge Licence Boarding House" to "The Aegean Lodge" and no meta tags were located within the source code of the web page. Brett Gall 42 Mr Gall is the General Manager of a printing firm known as Galloping Press, which in November 2001 was the publisher and printer of a publication known as "The Backpack Guide to Australia." Mr Gall testified that such publication was distributed free of charge particularly at the arrival section of Sydney Airport. Copies were also distributed to tour operators and advertisers. The cost of producing the publication which was published quarterly was paid for by advertising. 43 Orders were placed from persons wishing to advertise in the magazine. By order dated 20 November 2001 The Aegean Backpackers Hotel placed an order for an advertisement in the "The Backpack Guide to Australia" magazine in full colour. An invoice dated 7 December 2001 was issued to "Peta Athens The Aegean Lodge" which was paid. Invoices for the same advertising were produced dated 12 March 2002, 17 June 2002 and 18 September 2002 all of which were paid. 44 Annexed to Mr Gall's affidavit are copies of the editions of the publication "Backpack Guide to Australia" for summer 2001, autumn and winter 2002. Advertisements on p 14 of the summer 2001 edition and p 17 of the autumn 2002 edition are entitled "The Aegean Coogee Bay Road Backpackers Backpacker Accommodation & Resort". The advertisements include a photograph of a mini-bus bearing the name "Aegean Coogee Bay Rd Backpackers". The advertisement on p 31 of the winter 2002 edition is entitled "The Aegean Lodge Shared Budget Accommodation". It includes the text: "Dorms from $14 per night on weekly discount". However generally it has the same text, layout, illustrations and photographs including a photograph of a mini-bus bearing the name "Aegean Coogee Bay Rd Backpackers" as the previous two advertisements already described.

[34]

The particulars did not specify that the LEP definition of " backpacker accommodation " would apply. The Court will consider the charge based upon the terms of the order applying the ordinary meaning of "backpacker ". If the LEP definition is, in substance no different, then the consequence will follow that the findings will be applicable to both meanings. 67 The ordinary meaning of the word "backpacker" contained in the Macquarie Dictionary revised 3rd edition is as follows:- A person who travels with clothes and personal belongings in a rucksack. 68 On the evidence before the Court it is clear that persons who answer that description have been residents of the premises during the period referred to in the charge. The evidence establishes that rooms within the premises were used for the purpose of dormitory style accommodation. This fact is not of itself sufficient, however when the evidence of the blue Collins diary and Ms Thompson is cross referenced, it is established that a substantial number of the residents were occupying the premises for short stays and were travellers. The photographs tendered in evidence showed rucksacks or backpacks which the Court infers belonged to such persons. The evidence also establishes that many such residents were tourists from foreign countries who possessed working holiday visas. The Court is satisfied that such evidence establishes that the premises were used for the purpose of backpackers accommodation. Conversations held with council officers with some of the residents simply confirm that they were travellers who were using the premises for short term accommodation. 69 The second respondent caused brochures to be published advertising the subject premises in "The Word Backpacking Australia". The evidence establishes that the second respondent had paid for the advertisement in "The Backpack Guide to Australia" during the period referred to in the charge. Although the word "backpacker" does not appear in the later advertisements, the brochure is obviously directed to a limited market, namely those persons who are seeking accommodation generally sought by backpackers. Whilst such evidence by itself, would not be sufficient for the Court to be satisfied that order 1 made on 1 June 2001 had been breached, such evidence, taken into consideration with the diary entries, confirms the Court's finding that the premises were used for such purpose. 70 Exhibit "T" comprises a bundle of undated pro forma statements which were apparently signed by residents when booking into the premises. They purport to state that the person is not a tourist and that the occupation at the premises is for an initial trial period. The trial periods vary from 1 night to 1 week for the express purpose of enabling the person to determine whether "the premises are satisfactory to me as a permanent lodger". The Court does not accept that such records are sufficient to establish that the resident was not a backpacker. 71 Subpoenas were issued to the respondents requiring production of records recording bookings from 11 May 2002 to the date of the subpoena (19 February 2004), tax returns, letters of instruction concerning the preparation of the website and correspondence with publishers of travel magazines. No records relating to bookings were produced including the registers entitled "Nightly", "Check In" and "Weekly" which had been observed by Mr Graham nor was the original blue Collins diary produced. The respondents failed to provide a satisfactory explanation for their non-production. In these circumstances the Court infers that such records would have contained evidence of continued bookings and guest registration. 72 Exhibit "S" is a receipt book which was tendered on the first day of the resumed hearing commencing 20 April 2004. The period covered by the receipt book is for the period 17 February 2004 to 9 April 2004. An attempt has been made to obliterate the word "Backpackers" from the original receipts. However such word is clear on the carbon copy of each receipt. The periods of accommodation range from one night to two weeks. 73 In determining the period of breach of the Court's order the Court takes into account the following evidence: the advertising material shows that the premises were available for use for the purpose of backpackers accommodation between summer 2001and winter 2002; evidence of bookings taken through email in June 2002; the entries in the blue Collins diary and from the inspection that the premises were used for the purposes of backpackers accommodation in the period January 2003 including 1-4, 6-10, 14 & 15 January 2003; the website was in operation in July and December 2003 and in March 2004; entries in exhibit "S" recording bookings up to 9 April 2004. 74 Although the charge and particulars provided allege a breach of the order from 31 March 2002 and continuing to the present time, the Court can find that within this period a contempt has occurred. The council acknowledges that because of the concession made to the respondents, no finding of contempt can be made for the period from 31 March 2002 to 10 May 2002. The Court is satisfied that the use of the premises for backpacker accommodation has continued from 11 May 2002 to 9 April 2004. During this period the Court finds that the respondents wilfully disobeyed the Court's order by using the premises for the proscribed purpose and are therefore in contempt of the Court's order made on 1 June 2001. 75 Section 124AA of the Environmental and Planning and Assessment Act 1979 ("EP&A Act") provides:- 124AA Evidence of use of premises as backpackers' hostel (1) This section applies to proceedings before the Court under this Act to remedy or restrain a breach of this Act in relation to the use of premises as a backpackers' hostel. (2) In any proceedings to which this section applies, the Court may rely on circumstantial evidence to find that particular premises are used as a backpackers' hostel. Note. Examples of circumstantial evidence include (but are not limited to) the following: (a) evidence relating to persons entering and leaving the premises (including the depositing of luggage) that is consistent with the use of the premises for a backpackers' hostel, (b) evidence of the premises being advertised expressly or implicitly for the purposes of a backpackers' hostel (including advertisements on or in the premises, newspapers, directories or the Internet), (c) evidence relating to internal and external signs and notices at the premises (including price lists, notices to occupants and offers of services) that is consistent with the use of the premises for a backpackers' hostel, (d) evidence of the layout of rooms, and the number and arrangement of beds, at the premises that is consistent with the use of the premises for a backpackers' hostel. 76 The Court is satisfied that s 124AA of the EP&A Act applies to these proceedings since they are proceedings to remedy a breach of the EP&A Act. If the Court had needed to rely upon to this section, it would have found that the advertisement of the premises for the purposes of "shared budget accommodation" implicitly advertised the premises for the purposes of accommodation which would be suitable, inter alia, for backpackers, that the signage relating to rates for accommodation, the layout of the rooms and the offers of services were consistent with the use of the premises as a backpackers hostel. However the Court finds it unnecessary to rely upon such section in reaching its findings and conclusion.

[35]

Charge 2 Findings 77 Order 3 of the orders made on 8 December 2000 required the respondents to remove sliding glass doors from garage 9 and garage 10 and restore the garages for the purpose of car parking. 78 The respondents submit that the order is unenforceable because it contains no specified date for compliance. However order 4 of the consent orders made on 8 December 2000 provides:- That the First and Second Respondents comply with Consent Orders 1, 2, and 3 above by 31 December 2000. 79 The consent orders which included orders 3 and 4 made on 8 December 2000 were served upon the respondents on 21 December 2000. The consent orders made on 8 December 2000 should be read as a whole. Order 3 specified a time for compliance by virtue of order 4 and accordingly complies with the requirements of Part 15 rule 6 of the Rules. 80 The respondents also submit that order 3 made on 8 December 2000 is unenforceable because it is ambiguous. The respondents submit that the order is ambiguous because the word "remove" does not make sense. However as stated at par 12 of the first judgment in these proceedings (see Randwick City Council v Athens and Anor (No. 1) [2004] NSWLEC 23) the respondents acknowledged that they had "no difficulty in coping with [the charge] because it alleges as a precise act or the failure to carry out a precise act" and that no objection was pressed to the second charge. Nevertheless the Court considers that in fairness to the respondents such submission should be considered. 81 Order 3 made on 8 December 2000 was a consent order and within that context the Court is satisfied that the order is not ambiguous: see South Sydney City Council v Sharpe, Bignold J, Land and Environment Court of New South Wales, 20 April 1998, unreported. When entering into the consent order number 3 dated 8 December 2000, the respondents can be taken to have known that they were undertaking to perform two separate requirements, namely to remove the doors and additionally to restore the garages for the purpose of carparking. 82 At the inspection carried out by Mr Graham and Mr Morrissey on 16 January 2003, both officers testified that the sliding glass doors remained in their tracks. Photographs taken at that inspection appear to show that the glass doors were in their tracks. It is claimed by the respondents that the sliding glass doors were removed from their tracks but remained in substantially the same position, although upside down. The photographs tendered by the respondents taken in March/April 2004 show that the doors were upside down and apparently placed in a similar position as the doors would have been had they been in their tracks. Relocating the glass sliding doors from their tracks and placing them upside down in essentially the same position is not sufficient to "remove" them for the purposes of order 3 made on 8 December 2000. 83 The photographs tendered in evidence by both the council and the respondents show that furniture and bedding is stored within the garages. Such photographs also show the glass doors placed across the entranceway immediately behind the roller shutter doors. Both the position of the glass doors and the storage of furniture which occupies most of the space within the garages prevent the garages from being used for the purpose of carparking. 84 It follows that order 3 of 8 December 2000 has not been fulfilled and that the respondents committed a breach of the order on 16 January 2003 and again in March/April 2004. The Court draws the inference that the garages have never been restored for the purpose of carparking. 85 Accordingly the Court determines that the respondents have wilfully been in breach of order 3 by failing to remove the glass doors to garages 9 and 10 and by failing to restore the garages for the purpose of carparking and that such breach has continued from 11 May 2002 to the present time. 86 Accordingly the Court finds that the charges of contempt against the respondents have been proved. In respect of the first charge for the period 11 May 2002 to 9 April 2004 and in respect of the second charge from 11 May 2002 to the present time.