HAWKESBURY CITY COUNCIL v FOSTER and ANOR [1997] NSWCA 141

HAWKESBURY CITY COUNCIL v FOSTER and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and SHELLER JJA

22 August 1997, 18 December 1997

[1997] NSWCA 141

Fines and Penalties Act, 1903 s5 — Local Government Act, 1993 s694(1) — contempt — definition "under" an Act.

FACTS

The appellant and the first respondent had sought a restraining order from the Land and Environment Court against the second respondent, Mushroom Composters Pty Ltd. The order was granted and later breached. The appellant and first respondent then sought orders for the second respondent to be punished for contempt. The second respondent pleaded guilty and was fined. The council then made application seeking the payment of the whole of the fine pursuant to s694(1) of the Local Government Act 1993; and alternatively, to be paid a moiety of the fine pursuant to the Fines and Penalties Act, 1903. That application was dismissed.

HELD

(1) Meagher, Sheller JJA, Mason P dissenting: the fine imposed was not one "under" an Act for the purposes of s694(1) of the Local Government Act.

(2) Meagher, Sheller JJA: the trial judge in not awarding a moiety of the fine pursuant to the Fines and Penalties Act properly exercised her discretion.

Mason P At issue in this case is the right of a Council to recover all or part of a fine imposed by the Land and Environment Court for a contempt of an order, being an order granted in proceedings initiated by the Council.

On 20 May 1993 Pearlman J, Chief Judge of the Land and Environment Court, ordered that the second respondent, Mushroom Composters Pty Ltd ("Mushroom Composters") be restrained from using or suffering or permitting to be used certain premises at Ebenezer so as to interfere with the amenity of the neighbourhood in respect of smell!. The order was suspended for 12 months, so that it became effective on May 1994. The order had been sought by Hawkesbury City Council ("the Council"), the appellant in this appeal, and by Mr Foster (representing the Ebenezer Concerned Residents Committee) who is the first respondent in the appeal. The basis of the claim for an injunction was Mushroom Composters' breach of conditions of a development consent?. Despite the suspension of the injunction, Mushroom Composters remained in breach of the development consent and the order after 20 May 1994.