Land and Environment Court of New South Wales CITATION: Manly Council -V- Angelo [1999] NSWLEC 16 This judgment revised on: 02/03/99 PARTIES APPLICANT: Manly Council RESPONDENT: Angelo, D.P. NUMBER: 40056 of 1994 CORAM: Bignold J KEY ISSUES: :- -Contempt of Court-disobedience of Court's Orders. Non-apearance of alleged contemnor. Court proceeds to determine Motion ex parte on basis of contemnor's previous admission of guilt but reserves question of penalty LEGISLATION CITED: -Contempt of Court-disobedience of Court's Orders. Non-apearance of alleged contemnor. Court proceeds to determine Motion ex parte on basis of contemnor's previous admission of guilt but reserves question of penalty DATES OF HEARING: 02/11/1999 EX TEMPORE JUDGMENT DATE: 02/11/1999 APPLICANT: Mr R.K. Graham, Solicitor LEGAL REPRESENTATIVES: RESPONDENT: No Appearance JUDGMENT: 1. By Notice of Motion filed on 12 March 1998 the Council sought orders against the Respondent Danny Peter Angelo that he be punished for contempt of Court as specified in the Statement of Charge by being committed to prison, or fined, or both. 2. The accompanying Statement of Charge indicates that the Respondent had failed since 9 October 1995 to comply with Orders made by this Court on 10 July 1995. Order 1(a) in particular required the Respondent to reconstruct the roof upon premises partly owned and resided in by the contemnor at 69 Wood Street, Manly. The Statement of Charge goes on to allege that there had been a failure to comply with that Order and indeed a failure to comply with ancillary orders as detailed in paragraphs 2 and 3 of the Statement of Charge. 3. The matter has been before the Court on a number of occasions but I need only refer in the chronology to the occasion on 27 October last year when the Respondent appeared unrepresented. On that occasion Mr Graham, Solicitor, appeared for the Council and the Contempt Motion was at least, part heard. 4. It was not finally dealt with by me on that occasion because of statements made by Mr Angelo and accepted by the Court and by the Council at face value that he was in dire financial difficulties and that those difficulties essentially were the reason for his disobedience of the Court's Orders but that there was a prospect of an early receipt by him of payment by a liquidator of a now defunct company which had been indebted to Mr Angelo for many years for a sum in the order of some $36,000. 5. On that occasion Mr Angelo also indicated the existence of a substantial debt on the subject premises owed to the Commonwealth Bank and indicated that he had received notice from the bank that it was likely to take action in default of payment of relevant mortgage payments. 6. There is a transcript of the proceedings on 27 October 1998 and Mr Graham on behalf of the Council today has drawn my attention to features of the transcript which demonstrate that Mr Angelo in effect has confessed to the contempt as alleged. 7. The matter was adjourned by consent on that occasion to a date at the end of term on 18 December for the purpose of finally disposing with the Council's Motion and more hopefully of hearing a report of the fulfilment of Mr Angelo's expectation of having received the aforesaid money from the liquidator and his pledge to commit the funds in priority to undertaking the outstanding works the subject of the Contempt Motion and the Court Orders. On that occasion there was no appearance by the alleged contemnor and the Duty Judge Lloyd J stood the matter over until 5 February, that is Friday of last week before the Duty Judge and directed the Council to notify Mr Angelo of that fixture. 8. The affidavit of John Woolridge sworn 28 January 1999 satisfies me that Mr Angelo was appropriately notified of that fixture but on 5 February this year, that is last Friday when the matter came before Acting Justice Cowdroy as Duty Judge, again there was no appearance by Mr Angelo. 9. His Honour at the request of the Council on that occasion gave it leave to obtain a hearing before me. 10. They are the background facts which bring the matter before me today. I should note that Mr Angelo has not been informed of today's fixture and ordinarily in such circumstances I would only give directions reasonably sought by the Council for the final disposal of the case. However there are other considerations in the case which lead me to take a different course of action in the present case. They are the fact that the Council's Contempt Motion has been before the Court in the past year on many occasions for most of which Mr Angelo has not attended or been represented. But more significantly is the fact, as I earlier alluded to, that on 27 October 1998 when Mr Angelo did appear for himself he admitted frankly and candidly the fact that the Court's Orders had not been complied with. 11. Even if it were established ultimately that the reason for that non-compliance was financial difficulty experienced by the contemnor, that fact would not change the ultimate fact that the disobedience must be regarded as relevantly "wilful" and hence constitute contempt of court in accordance with the decision of the High Court of Australia in Australasian Meat Industry Employees' Union & ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98. That is, that the disobedience of the Court's Orders in this case could not be regarded as "casual or unintentional or accidental". On the contrary it is clear from what was said on 27 October 1998 by Mr Angelo that the disobedience is "wilful" in the sense of being deliberate and intentional, albeit, if one were to believe what Mr Angelo said on the last occasion (and there has been no relevant challenge or rebuttal) the reason for that state of affairs is his lack of financial wherewithal and his pressing indebtedness to others, including more particularly the Commonwealth Bank of Australia, in respect of the premises. 12. It was in these circumstances that I acceded to Mr Graham's suggestion that the appropriate way to proceed on the Motion so that it not be left in an constant state of flux, would be to act upon the admissions made by Mr Angelo when he was before the Court on 27 October 1998 and to act upon the sworn evidence in Ms Ruth Holten's affidavit sworn on 3 February this year deposing to her inspections of the premises both on 16 December 1998 preparatory to the matter being before the Court on the 18 December and of her follow-up inspection conducted on 3 February this year preparatory to the mention of the matter before this Court on 5 February. 13. In that affidavit her inspections as deposed to indicate that no work as required by the Court's Orders had been carried out. 14. In the circumstances I am prepared to deal with the matter by recording my finding on the Motion but in fairness to the alleged contemnor (whom I am about to find guilty of contempt as alleged) the question of penalty will be reserved to give him an opportunity to put to the Court any submissions or evidence he wishes to put in that behalf. The Council of course will have the same opportunity. 15. In the circumstances and for the foregoing reasons I find the Respondent Danny Peter Angelo guilty of the contempt of Court as alleged against him in the Council's Notice of Motion filed on 12 March 1998. I reserve the question of penalty and sentence and costs in order that Mr Angelo have an opportunity to make a case to the Court on those matters and that the Council will have the same opportunity. 16. Accordingly the reserved questions will be considered 28 days from today, that is Thursday 11 March 1999 at 9.30am and I direct the Council to notify Mr Angelo of that adjourned date and of the purpose of it. 17. GRAHAM: As a matter of convenience only to myself could I ask that that could be 17 March at 9.30? 18. HIS HONOUR: That's the Wednesday following is it? 19. GRAHAM: Yes it is your Honour. 20. HIS HONOUR: Yes. I correct the Orders by substituting 17 March 1999 at 9.30am for 11 March previously mentioned. 21. GRAHAM: Would your Honour make a direction that if the process server is unable to effect personal service on Mr Angelo that leaving the letter under the front door, as he did on the last occasion, would be deemed sufficient service? 22. HIS HONOUR: Yes. I direct that the required notice to be given to Mr Angelo will be satisfactorily given by either personal service or, in the event of that not occurring, by leaving written notice at his premises 69 Wood Street, Manly, by leaving the letter under the front door. --------------OoO-------------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. 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.