Reported Decision : (2001) 119 LGERA 346 Land and Environment Court of New South Wales CITATION : Bathurst City Council v Stamatopoulos [2001] NSWLEC 93 APPLICANT Bathurst City Council PARTIES : RESPONDENT Stamatopoulos FILE NUMBER(S) : 40189 of 1999 CORAM: Cowdroy J KEY ISSUES: Contempt :- Application for adjournment by prosecutor to call evidence in reply to defendant's evidence - objection by defendants to splitting of prosecutor's case - nature of contempt proceedings - contempt proceedings remaining as civil proceedings - adjournment granted. Land and Environment Court Rules 1996 Pt 6 r 1 LEGISLATION CITED: Supreme Court Rules 1970 Pt 55 r 6 Supreme Court Act 1970 s 123 Microsoft Corporation & Anor v Rodney David Marks [1996] 709 FCA 1 ; CASES CITED: Morris & Ors v Crown Office [1970] 2 Q.B. 114 ; The Queen v Chin (1984-1985) 157 CLR 671 ; Witham v Holloway (1995) 183 CLR 525 DATES OF HEARING: 6/11/00, 7/11/00, 8/11/00, 14/5/01, 15/5/01 EX TEMPORE JUDGMENT DATE : 05/15/2001 APPLICANT Mr W Davison SC with Mr P Clay (Barrister) SOLICITORS McIntosh, McPhillamy & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Hastings QC with Mr J Robson (Barriser) SOLICITORS Mc Phee Kelshaw Solicitors JUDGMENT: IN THE LAND AND MATTER No. 40189 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 15 May 2001 Bathurst City Council Applicant v Theo and Dianne Stamatopoulos Respondents EX TEMPORE JUDGMENT 1. In these proceedings a question of law has arisen for determination concerning the entitlement of the applicant to seek an adjournment for the purpose of calling further evidence in support of the charges against the respondents. 2. It is necessary to recite a short history of the proceedings to date. Following their institution a call-over took place before the Registrar on 21 July 2000 at which directions were made concerning the filing and serving of evidence. The respondents, who were represented by counsel agreed to orders that they would file and serve any affidavits upon which they wished to rely in defence of the charges of contempt within 21 days, namely by 8 August 2000. The applicant was ordered to file and serve any affidavits in reply within 35 days namely by 25 August 2000. 3. The notice of motion for contempt has been issued in current class four proceedings. On 25 July 2000 the solicitors for the applicant wrote to the Registrar of the Court referring to the call-over on 21 July 2000 and to the directions that were made. His letter contains the following statement:- It is agreed between the parties that it is appropriate for the notice of motion alleging contempt of Court orders to be dealt with before the class 4 proceedings are heard. The issues in the class 4 proceedings may cause the Respondents to put on evidence which may be prejudicial to them in the contempt proceedings in respect of which the applicant accepts that the respondents may choose to exercise a right to silence. 4. In accordance with the parties' request the motion for alleging contempt has been listed for hearing before this Court prior to the class four proceedings, and the hearing initially commenced on 6 November 2000 and continued on 7 and 8 November 2000 when it was adjourned part-heard. No affidavit evidence was filed by the respondents in accordance with the direction that had been made on 21 July 2000. 5. The hearing resumed on the 14 May 2001. At the close of the applicant's case the first respondent and Mr Cork, his solicitor, gave oral evidence without objection. This morning the second respondent was called to give evidence and objection was taken by the applicant that no affidavits had been provided. The Court granted leave for the oral evidence to be adduced despite the directions of 21 July 2000 upon the basis that the applicant could make an application to adduce further evidence in reply in relation to any unexpected matter raised by the evidence of the respondents. Senior Counsel for the respondents, Mr P Hastings QC made no objection to the terms upon which the oral evidence was to be led. 6. At the close of the respondents case Mr Davison SC sought an adjournment for the purpose of calling evidence in reply. Mr Davison SC submitted that until the oral evidence was adduced there was no contest concerning certain factual matters of which two council employees had given evidence. The evidence adduced orally challenged the accuracy of that evidence. The applicant accordingly sought to adduce evidence of third parties whose testimony would support the evidence of the council officers. Respondents opposition 7. The respondents submit that leave should not be granted as sought. They submit that the proceedings are criminal in nature and that in accordance with established principles of criminal law, the rebutting of evidence adduced by the respondents should only be allowed in exceptional cases. The Court has been referred to a list of authorities referred to and set out in 'Criminal Law (NSW)' (1996 LBC Information Services) by Watson at par [2.35760]. In summary those authorities support the proposition that a applicant must call all evidence in chief and will not be allowed to re-open its case or to split its case: see The Queen v Chin (1984-1985) 157 CLR 671 at 676 per Gibbs CJ and Wilson J, and at 685 Dawson J. 8. The respondents submit that the criminal nature of the charges against them for contempt is emphasised by the reference in the notice of motion to penalties which include imprisonment and/or fines. They submit that all principles of the criminal law should accordingly apply. Nature of proceedings 9. The notice of motion alleging contempt has been issued in class four proceedings of the Court's jurisdiction. Part 6 r 1 of the Land and Environment Court Rules 1996 adopts Pt 55 of the Supreme Court Rules 1970 ("the SC Rules"). Part 55 of the SC Rules makes provision for proceedings to be instituted for contempt of Court. The Rules of the Supreme Court have been made pursuant to s 123 of the Supreme Court Act 1970. 10. The nature of contempt proceedings has been considered by the High Court of Australia in Witham v Holloway (1995) 183 CLR 525. The majority decision of Brennan, Deane, Toohey and Gaudron JJ at 534, in answer to the submission that if contempt proceedings were essentially criminal in nature there was no power to retry the charges against the appellant, said:- However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. Their Honours then emphasised ' clear procedural differences' between criminal charges and contempt charges, such as the absence of trial by jury. 11. McHugh J, having considered the case for the abolition of the distinction between criminal and civil charges dealt with the submission that the High Court of Australia could not order a new trial of the proceedings because they were said to be 'essentially criminal in nature' and said at 549:- However, although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt [emphasis added]. The were commenced (123) under the Rules of the Supreme Court that govern civil proceedings. The footnote reference in the quotation refers to the institution of the proceedings by way of summons in accordance with Pt 55 r 6(2) whereas His Honour made observation that such application should have been made by notice of motion under Pt 55 r 6(1). This distinction is not relevant for the present purposes except to show that the proceedings were instituted pursuant to Pt 55 of the SC Rules as are the present proceedings. 12. In England similar observations relating to the nature of contempt proceedings have been made. In Morris & Ors v Crown Office [1970] 2 Q.B. 114 at 129 Salmon LJ said:- This power to commit for what is inappropriately called "contempt of court" is sui generis and has from time immemorial reposed in the judge for the protection of the public. Although the point is by no means free from difficulty, I agree with my Lords that Parliament cannot be taken to have intended that this power should be fettered by the Criminal Justice Acts of 1948 and 1967. To my mind it is plain that Parliament never intended these Acts to apply to proceedings such as these. 13. C J Miller, 'Contempt of Court' (2nd Edition, 1989, Clarendon Press, Oxford) at 5 draws several distinctions between criminal law and the law relating to criminal contempt of court noting for example, trial by summary process without jury in civil courts, absence of the requirement for formal institution of proceedings and:- At the hearing itself the tradition of oral evidence in criminal cases is not observed and usually evidence is given by affidavit . 14. In Microsoft Corporation & Anor v Rodney David Marks [1996] 709 FCA 1 (14 August 1996 - Full Court) Beaumont J (with whom Lindgren and Lehane JJ agreed) made the observation that proceedings for contempt instituted in the course of injunctive proceedings were designed to be remedial rather than punitive in character and were in the nature of civil contempt rather than criminal contempt. In the present proceedings the fact that the motion for contempt is similarly an interlocutory application in a civil proceeding reinforces the nature of the proceedings as essentially civil proceedings albeit criminal in certain respects, such as the standard of proof (Witham v Holloway at 534). 15. Accordingly these proceedings for contempt are civil proceedings and the submissions of the respondents concerning criminal law principles have no application. 16. The respondents agreed to the directions made by the Court on 21 July 2000 which included the entitlement of the applicant to call evidence in reply. Since the need for the adjournment has arisen in consequence of the oral evidence which was allowed subject to the right of the applicant to call evidence in reply, the adjournment will be granted. Orders 17. The Court orders that:- 1. The hearing be adjourned to a date to be fixed by the Registrar. 2. Leave be granted to the parties to approach the Registrar forthwith to obtain further hearing dates. 3. Any further evidence of the applicant in reply be provided by way of affidavit and to be served upon the respondents not less than 14 days before the resumed hearing dates. 4. Costs reserved. 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.