South Sydney City Council v Hexiva Pty Limited

40047 of 2001 Talbot J 28 August 2002

South Sydney City Council Applicant v Hexiva Pty Limited Respondent

HIS HONOUR: The proceedings before the Court are commenced by way of a notice of motion seeking that the respondent be found guilty of contempt of the Court's Orders made on 2 August 2001 ("the Court's Orders"). The Court's Orders were made following two days of hearing in class 4 proceedings wherein South Sydney City Council ("the council") sought mandatory orders requiring that the respondent comply with the terms of an order made pursuant to s 121B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") ("the council's orders").

In the course of the original proceedings many issues were canvassed. In lieu of making an order simply that the respondent comply with the council's orders made under the EP&A Act, the Court made orders of its own . In doing so, the Court reaffirmed some of the orders made by the council, and in each case, set a timetable consistent with the Court's expectation of the capacity of the respondent or the obligation of the respondent to comply. The original timetable had long since expired. In other cases, the Court substituted its own orders (in lieu of the council's orders) after hearing the evidence.

The evidence in support of the council's notice of motion discloses that notwithstanding the final nature of the Court's Orders, both parties appear, in some respects, to have tried to accommodate certain practicalities. Unfortunately, a number of matters were not resolved in that way and ultimately, in May of this year, the council saw fit to commence these contempt proceedings.

Initially, the Statement of Charge contained reference to a number of matters which were said to be outstanding or had not been complied with, either strictly or within the time specified in the Court's orders. Contempt proceedings, rather than being proceedings consequent upon the making of the council's orders, are proceedings commenced seeking punishment for failure to comply with orders of the Court. When the contempt hearing commenced, and indeed at various times throughout, Mr Hawkes, on behalf of the council, indicated that a number of matters were no longer pressed. In some cases, an explanation was given, in others, there was no explanation.

It was apparent that the council's primary objective has been to force the respondent to bring the subject premises into such a state that they either comply with the provisions of the Building Code of Australia ("the BCA") or they are deemed to comply or that they otherwise are in a satisfactory condition, having regard to the requirements for fire safety of the occupants.

Ultimately, the respondent pleaded guilty to a charge that certification had not been produced in respect of the sealing of penetrations by certain copper pipes. Mr Wechsler, who appears for the respondent, has explained that the failure to seal the particular penetrations was overlooked and did not become apparent until the council officer raised it. When it was raised, they were sealed and ultimately certification can be provided. Although some certification has been provided, it is not clear from the evidence that the certification in regard to the copper pipes per se has been provided, subsequent to the carrying out of the work referred to in the charge. I do not stay to make any particular finding about that because the Court is satisfied now that the sealing has taken place. That is satisfactory. The council does not raise any issue about the effectiveness of the seal in terms of a fire safety requirement.

The respondent has also entered a plea of guilty for failing to fit certain doors with a tag, so as to comply with AS1905 within a required time, and for failing to fit a smoke seal to a door adjoining a laundry within the specified time. These matters have since been resolved, although some issues still remain about whether or not the laundry door in fact required a smoke seal at all.

The other matter to which the respondent has, again, entered a plea of guilty relates to the installation of fire hydrants pursuant to Order 4 made by the Court, which required the following:- …the respondent shall provide to council within six weeks from the date hereof a report from an appropriately qualified consultant certifying whether or not the building can rely on the existing external hydrants for compliance with the requirements of the BCA.

The Order continues as follows:- If the report does not certify that the building can rely on the existing external hydrants, then the hydrants shall be installed throughout the building in accordance with the requirements of clause E1.3 of the BCA within six months from the date hereof.

This did not occur. Mr Wechsler has provided a chronology that explains, to some extent, how it is that there was a delay in resolving issues about water pressure and connection to the water system. The essential discussions with the fire brigade broke down and had to be reinstituted at a later time. It was not until April of this year (sometime after the time for compliance had expired) that the various problems were resolved. It was after the commencement of these proceedings that the whole of the work associated with the hydrants, the certification and providing satisfaction to the council was completed. The fact is, however, the work is now complete.

Two issues, in respect of which the respondent has entered a plea of not guilty, remain out of the Statement of Charge. The first relates to the failure to sign and complete certification in respect of solid core doors, as required by par 4.1 of the council's orders, which was reiterated and reinforced by Order 2 of the Court's Orders. It is apparent that some certification was provided during the month of October, possibly November 2001. There has been some confusion about what document was actually received by the council. So far as par 4.1 of the council's orders is concerned it has not, in the Court's view, been proved beyond reasonable doubt that the respondent did not provide a certification in that respect.

The other matter in respect of which a plea of not guilty has been entered also relates to a question of certification. Although primarily a simple issue on its face which, stated in the charge, relates to the installation of hose reels in accordance with Order 5 of the Court's Orders, it has since become a much wider issue. There can be no doubt that even if technically there was certification that the hose reel had been installed in the location in dispute, namely an area of a lobby adjacent to the car park, it is clear that the hose reel in question has not been installed in accordance with the requirements of the BCA.

Without going into detail of the requirements of the BCA, the problem, shortly stated, is that the hose reel located in the lobby adjacent to the car park is required to pass through what is technically a smoke door, contrary to the provisions of the BCA. Mr Wechsler has argued that to regard the door between the lobby and the car park as a smoke door is erroneous. He has called his own expert witness, Ken Bernie, to verify that opinion. However, there are a number of matters that need to be taken into account in determining whether or not the circumstances surrounding the commission of the offence which has, in my opinion, been proved beyond reasonable doubt, attract a degree of mitigation that work in favour of the respondent.

Firstly, in par 25 of the judgment delivered on 2 August 2001, the Court notes that the council and the respondent reached an agreement in respect of works required, in lieu of works specified in the council's orders, namely par 1.11. That agreement related to the very works, which are now specified in the Court's Orders, namely Orders 3(a) to 3(h). Accordingly, at the time of the original proceedings, the respondent had agreed to treat the area in the way the Court ordered.

For the reason I have just explained, the hose reel could not be regarded as having been installed in accordance with the BCA. The problem would not have arisen if the door leading from the lobby into the car park, was not or is not, to be regarded as a smoke door. The fact that the hose from the reel was required to pass through what is designated as a smoke door creates the non-compliance.

In the course of giving evidence Mr Bernie changed his mind. Heretofore, he had accepted that the council's requirement was reasonable. It was only when he came to address the issue regarding the alleged non-compliance of the hose reel and re-analysed the situation that he changed his mind and expressed the opinion to the Court that the lobby adjacent to the car park was not an area that needed to be treated as a primary access, as required by the BCA.

I do not propose to take the matter any further than to say that I am satisfied about a number of things. Firstly, the lobby area adjacent to the car park does not, in my opinion, provide a risk to persons who find their way to it, in the event of a fire, at least to the extent that a fire door is required at the exit point into the car park. An appropriate door has been fitted to the exit point from the stairway above. The laundry has been fitted with a smoke seal. Admittedly, there is a capacity for smoke to escape through a grill ventilator leading out of the laundry into the lobby. However, I am satisfied that there is an acceptable prospect that any smoke that finds its way into the lobby and car park can be ventilated through the car park.

The finding does not excuse the respondent from guilt by not satisfying the requirements of the BCA in respect of the hose reel. Nevertheless, the Court is prepared to find that the result of passing the hose through the door will not create a situation which is likely to be detrimental to occupants of the building, should they be attempting to escape. I am satisfied that if the matter had been raised as an issue in the original proceedings, it is reasonable to expect that the Court would not have insisted on the doorway opening into the car park being a fire door.

I am prepared to accept an undertaking offered to the Court by Mr Wechsler that the fire door, located at the entrance to the car park, will be removed and that a latch in accordance with BCA D-21 be installed at the street gate leading to Tusculum Lane within 21 days from today. That undertaking, I believe, is a satisfactory solution to the problems associated with the lobby. The removal of the fire door will facilitate the ventilation of the lobby in the event of a fire in the laundry. The staircase will be protected by the fire door that is already installed at the stair entry. There will be a ready capacity for egress from the building through the fire door out of the stairway and through the car park. That is, in the event that somebody ever finds their way to that location. I do not accept the council's argument that because a car park may have cars parked in it, it cannot be regarded as unimpeded means of access.

Having said all of that, the Court is nevertheless satisfied beyond reasonable doubt that the respondent company is guilty of contempt of the Court's Orders as follows:- (1) Order 2, namely paragraph 4.1, in regard to certification, paragraph 4.5, in respect of the sealing of penetration caused by copper pipes and paragraph 5.2, in regard to the certification of the hose reel installation; (2) The failure to fit tags in compliance with the Court's Orders 3(b) and 3(c), and the failure to fit smoke seals to the laundry within the time specified by the Court's Order 3(h); (3) The failure to undertake works in relation to the fire hydrants pursuant to Order 4; and

I have had regard to the rather chequered history of this whole matter. I am now satisfied that subject to complying with the undertaking that has been furnished today, the intention and tenor of the council's orders and the Court's Orders, have now been met. Bearing in mind the council's primary objective to ensure that the requirements of the BCA, and its own orders, are satisfied and the achievement of that objective, it then becomes a question of whether a penalty should be imposed.

Although the actions of the respondent have been in many respects dilatory, I am also satisfied that there was no underlying behaviour which would entitle the Court to find that the company deliberately flouted the Court's orders, in the sense of disregarding them. The behaviour of the respondent is such that, although progress was slow, it ultimately ground its way to meeting the requirements set by the Court. Mr Wechsler has expressed contrition on behalf of the respondent.

I cannot see that the imposition of a monetary penalty would take the matter any further. I am, however, satisfied that the council was entitled to commence the contempt proceedings and that it was justified in doing so. I also find that, in the Court's view, the matters the subject of these contempt proceedings would not have been resolved without further litigation. I bear in mind that the company has the benefit of a finding by the Court that the enforcement of the agreement, which was referred to in par 25 of the original judgment and reflected in the Court's Orders, would not necessarily be justified if the council saw fit to take further enforcement proceedings. I say that, however, particularly in the light of the undertaking given to the Court which I have accepted.

The respondent must understand that an undertaking given to the Court has exactly the same result as if the Court had made an order in those terms, and that failure to comply will expose the company, once again, to a charge of contempt. I cannot guarantee that the Court will look so benevolently on the respondent's actions if there is a reoccurrence and it's actions are found once more to be wanting.

The council action was justified. It is appropriate in the circumstances, particularly in the light of the change of opinion by Mr Bernie, that the respondent pay the council's costs.

The Court makes the following formal orders:- (1) The matters, particularised in the Statement of Charge in respect of par 4.1, 4.5 and 5.2 of the council's orders and the Court's Orders 3(c), 3(h), 4 and 5, are proved beyond reasonable doubt.

(2) The respondent is found guilty of contempt of the council's orders and the Court's Orders as specified in Order 1 above. (3) No penalty is imposed by way of fine or otherwise. (4) The Court accepts the undertaking of the respondent in the following terms:-

That the fire door located at the entrance to the car park of the premises known as 5 Tusculum Street, Potts Point be removed and that a latch in accordance with the provisions of the BCA D-21 be installed at the street gate to Tusculum Lane within 21 days. (5) The respondent pay the applicant's costs in relation to the notice of motion for contempt. (6) The exhibits may 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.