WILKIE v COUNCIL OF THE CITY OF BLACKTOWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP 13 January 1992 [1992] NSWCA 273 CONTEMPT OF COURT — application to stay execution of orders of Land and Environment Court refused. Samuels AP This is an informal motion to stay the execution of orders made by judges in the Land and Environment Court. Shortly, on 17 July 1990 Stein J ordered the claimant, Mr Robert Wilkie, to remove earth filling from certain land at Marsden Park which it was alleged but denied by Mr Wilkie that he owned. Mr Wilkie has made this application today and has filed a summons in which he seeks that Stein J's orders and further orders made by Cripps CJ on 10 December 1991 should be set aside and seeks a stay of execution on those orders until appellate review may take place. Mr Wilkie has filed an affidavit which Miss McGrath who appears for the opponent, the Council, had the opportunity of seeing only when the matter was called on. I admitted the affidavit subject to her right to object to any parts of it should she wish to do so, having had further time in which to consider its contents. Shortly, Mr Wilkie has told me that since the orders of July 1990 he has been ill and from time to time unable to attend to business, that he never owned the land, that he can see no conceivable basis for any order against him to remove the filling, that witnesses against him had perjured themselves, that he has been denied natural justice, and generally that the orders made against him have no basis in fact or law. The operative order, if I may call it that, which was made by Cripps CJ on 10 December 1991 is that Mr Wilkie is to be brought before the Land and Environment Court tomorrow, 14 January, if necessary by warrant which has lain in the office and will remain there until tomorrow, for the purpose of enabling the court to determine whether he has complied with Stein J's orders of July 1990. If not, Mr Wilkie is to be taken to gaol either as punishment for his contempt or for as long as it takes him to purge his contempt by complying with the orders. There is evidence in Mr Wilkie's affidavit that he has commenced to have the fill removed and what significance a judge of the Land and Environment Court will attach to that is a matter of course for that judge. The question for me is whether in the circumstances I should intervene by staying the execution of the Chief Judge's order until appellate review may take place of the orders earlier made by Stein J which, of course, form the basis of the orders later made. I bear in mind that almost eighteen months have elapsed since Stein J made his orders. During that time Mr Wilkie has not taken any steps to appeal against those orders or to seek review of them. He says that his state of health has from time to time prevented his doing anything of that kind, but apart from some short statement in his affidavit there is no evidence that for the whole of that period. or for a significant part of that period, he has been so ill that he was unable to take 2 UNREPORTED JUDGMENTS steps himself or instruct legal advisers to do so on his behalf. I should interpolate that he appears in person. Similarly, a month has elapsed since the Chief Judge's orders of 10 December 1991 and it is not until the day before those orders were to be carried into effect that any steps have been taken to question them or the earlier orders. In these circumstances I do not think that a case has been made out for my intervention by staying execution. I do not know what may happen tomorrow but if the Judge decides that Mr Wilkie is in contempt and orders his removal to Long Bay Gaol, then of course there are avenues of review open to him in that event. Having regard to the history of the matter I do not think it would be right for me on the material that I have, to intervene in the matter. I think it should be left to the Land and Environment Court to determine, at least so far as to decide whether or not Mr Wilkie remains in contempt of that Court's orders. I repeat my advice to Mr Wilkie that at this stage he ought to seek legal advice. For those reasons I decline to stay execution of either the orders of 1990 or those of 1991 made by the Land and Environment Court. The summons and the affidavit can remain with the papers. Application refused. The claimant appeared in person. Counsel for the Opponent: Ms McGrath (Solicitor) Solicitors for the Opponent: Moffatt Sullivan