Land and Environment Court of New South Wales CITATION : Auburn Council v Nehme [2001] NSWLEC 127 APPLICANT Auburn Council PARTIES : RESPONDENT Nehme FILE NUMBER(S) : 40028 of 2000 CORAM: Cowdroy J KEY ISSUES: Contempt :- Respondent restrained from using premises for gymnasium or for any other purpose without consent under the Environmental Planning and Assessment Act 1979 - respondent using premises for gymnasium and for letting of rooms for accommodation without consent - premises failing to comply with fire regulations constituting a threat to its occupants - penalty imposed LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Attorney General v Times Newspapers Limited [1974] AC 273; CASES CITED: Director of Public Prosecutions v John Fairfax and Sons Limited and Ors (1987) 8 NSWLR 732; Witham v Holloway (1995) 183 CLR 525 DATES OF HEARING: 11/01/01, 12/01/01 EX TEMPORE JUDGMENT DATE : 01/12/2001 APPLICANT Mr A Hawkes (Solicitor) SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT In person SOLICITORS n/a JUDGMENT: IN THE LAND AND MATTER No. 40028 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 12/01/01 Auburn Council Applicant v Eddie Nehme Respondent JUDGMENT 1. By notice of motion filed on 29 November 2000 the council charged the respondent Eddie Nehme with contempt of court. On 16 May 2000 orders were made restraining the respondent by himself, his servant and agents from using or allowing or suffering to be used the former squash court building at 44 Kibo Road Regents Park ("the premises") or any part thereof to be used for the purposes of a gymnasium or for any other purpose for which consent was required under the provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") without any consent under such Act being in force. 2. The respondent has allegedly used the premises as a gymnasium and has used the upper floor thereof for the purposes of residential accommodation without consent as required by the EP&A Act. The respondent has pleaded not guilty to the charges. 3. The evidence of Peter John Edwards discloses that inspections took place on 8 September 2000, 9 September 2000, 11 September 2000 and 13 September 2000. A video was taken of certain activities which depict persons using gymnasium equipment in the premises. A sign attached to the premises advertises it as the 'Regents Park Sports Centre'. 4. Mr Nehme does not dispute that persons had been using the premises as a gymnasium since 16 May 2000 but he says that it was not possible to stop existing members from using the gymnasium. However, the evidence discloses that more than 100 members have been signed up as members of the gymnasium since that date. In his affidavit of 3 January 2000 Mr Robert Hines has provided evidence of an advertising flyer which advertises the gymnasium being available to the public. 5. Mr Greg Hansell made an inspection of the premises on 4 July 2000 and observed the arrangement of the rooms on the first floor of the premises and Mr Pierman has also carried out an inspection of the premises on Friday 30 June 2000. On 8 September 2000 Mr Carl Grey inspected the premises pursuant to a search warrant accompanied by Mr Robert Hines. On 13 September 2000 Mr Hines paid money to the respondent for the use of a room. It is established that rooms are being let on the first floor of the premises from $100 per week. There are approximately twenty four rooms available according to the evidence of Robert Hines as set out in his affidavit of 28 November 2000. 6. The evidence is overwhelming that the ground floor of the premises are being used as a gymnasium not only for members but also for members of the Beralla Bears football team. The evidence has also disclosed that the first floor is used for paid accommodation. 7. The respondent asserts that the evidence of the council is untruthful but does not dispute that the ground floor premises have been used and are being used as a gymnasium and that the upper floor has been used for the purposes of accommodation. A clear breach of the Court's orders of 16th May 2000 has occurred. 8. Mr Rajendra Rajbhandary, a qualified architect, has given evidence. He has inspected the premises and considers that the rooms on the first floor of the premises comprise an extremely serious fire risk. In addition, the Court has heard evidence, both written and oral, from Superintendent Honeybrook of the New South Wales Fire Department. On a scale of 1 to 10 increasing in seriousness for fire risk the Superintendent assesses the risk of these premises as being nine and half, that is, an extremely high fire risk. The evidence discloses that the requirements of the Building Code of Australia relating to fire safety have not been satisfied. The risks relate to the provision of exits, to signage and to the construction of doors. In summary, I am satisfied on the evidence that the upper floor of the building comprises a potential fire trap and a real danger to its occupants. 9. As a result, the Court considers it appropriate to give the decision in respect of the contempt of court charge to ensure that the use is brought to an end forthwith. 10. Contempt of court proceedings are instituted to punish an offender for failing to comply with the orders of the court. The orders of the Court made on 16 May 2000 are intended to be obeyed. The conduct of the respondent in breaching those orders has been deliberate and no contrition whatsoever is shown. Indeed the evidence suggests that unless effective measures are taken the use of these premises in breach of the Court orders will continue. 11. Lord Diplock in Attorney General v Times Newspapers Limited [1974] AC 273 at 307 described the nature of contempt of court proceedings. His Lordship said:- My Lords in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decisions on disputes as to their legal rights and obligations towards one another individually and towards a state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. In Director of Public Prosecutions v John Fairfax and Sons Limited and Ors (1987) 8 NSWLR 732 the President of the New South Wales Court of Appeal, Kirby P, said at 739:- Contempts whether civil or criminal share a common characteristic. It is as Lord Diplock said in Attorney General v Leveller Magazine Limited [1979] AC 440 at 449 that they ' involve an interference with a due administration of justice either in a particular case or more generally as a continuing process .' This 'common characteristic' led the High Court of Australia recently to emphasise the importance or the operation of contempt of law ' to uphold and protect the effective administration of justice '. 13. In this case the respondent has ignored the orders made on 16 May 2000 and has conducted himself as if the orders did not exist. 14. Contempt of the Court's orders of 16 May 2000 has been proved according to the criminal standard of proof (Witham v Holloway (1995) 183 CLR 525). Penalty 15. I turn to the question of penalty. In this case there will need to be a regime to ensure that the orders of the Court of 16 May 2000 are complied with. The Court accordingly orders that:- 1) The respondent be fined for contempt of court the sum of $10,000. 2) As of seven days from this date, if the illegal use comprising the use of the gymnasium and residential use, or any other use for which consent is not obtained exists, a fine of $2,000 per day is to be imposed upon the respondent. If the illegal use continues so that the cumulative daily penalty reaches $20,000 the council as prosecutor may apply to the Court forthwith to obtain orders for imprisonment and or sequestration of the respondent. 3) The respondent pay the costs of the applicant. 4) Stand over these proceedings in relation to any further application that might be made for the enforcement of these orders. 5) The exhibits will remain in Court pending the cessation of the legal uses. 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