Land and Environment Court of New South Wales CITATION : Randwick City Council v Athens and Anor (No. 6) [2004] NSWLEC 206 APPLICANT Randwick City Council PARTIES : FIRST RESPONDENT Peta Athens SECOND RESPONDENT Athens Holdings Pty Limited (ACN 001 166 552) FILE NUMBER(S) : 40097 of 2000 CORAM: Cowdroy J KEY ISSUES: Contempt :- application to reopen case for the purpose of tendering affidavits of service LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 1 r 6, Pt 6 r 1, Pt 6 r 2 Supreme Court Rules 1970, Pt 34 r 6 Drummoyne Municipal Council v Lewis and Ors (1974) 1 NSWLR 655; Home Management Maintenance v Doyle and Anor (1992) 109 FLR 225; McCarthy v McIntyre [2000] FCA 1250 ; Planet Build (NSW) Pty Ltd v Lassgol Pty Ltd [2001] NSWCA 40 ; CASES CITED: Reynolds v Whittens [2002] NSWSC 155; Smith v New South Wales Bar Association (1992-1993) 176 CLR 256; Tweed Shire Council v Mannix (1981) 50 LGRA 369 ; Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 128 LGERA 419; Witham v Holloway (1994-1995) 183 CLR 525 DATES OF HEARING: 22/04/2004; 23/04/2004; 27/04/2004 EX TEMPORE 04/27/2004 JUDGMENT DATE : APPLICANT Mr A. Thompson (Barrister) SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr D. Buchanan SC SOLICITORS Levitt Robinson Solicitors and Associates JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40097 of 2000 Cowdroy J 27 April 2004 Randwick City Council Applicant v Peta Athens First Respondent Athens Holding Pty Limited (ACN 001 166 552) Second Respondent Judgment No. 6 – application to reopen Introduction 1 The applicant ("the council") seeks to reopen its case against the alleged contemnors ("the respondents") for the purpose of tendering affidavits of service of the orders upon which the proceedings are founded. 2 Part 6 rule 1 and Part 6 rule 2 of the Land and Environment Court Rules 1996 ("the Rules") adopt certain Parts of the Supreme Court Rules 1970 ("the SCR"). However Part 34 rule 6 of the SCR which relate to the conduct of a trial is not adopted. Accordingly this Court relies upon Part 1 rule 6 of the Rules as providing the necessary basis upon which an application for reopening of a hearing may be considered. 3 Despite the submissions of the respondents that the criminal procedural rules should apply, the Court determines that these proceedings remain civil proceedings. They are criminal only to the extent that the requisite standard of proof for criminal proceedings is to be applied: see Witham v Holloway (1994-1995) 183 CLR 525. 4 The parties are unanimous that the principles to guide the Court on a reopening application are essentially contained in Smith v New South Wales Bar Association (1992-1993) 176 CLR 256, namely why the evidence was not called at the hearing, whether the hearing is complete, the question of prejudice and the interests of justice. Similar observations were made in Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471. 5 The council submits that evidence of service had not been adduced because of its misunderstanding of a procedural matter. It says that it relied upon the decisions in Tweed Shire Council v Mannix (1981) 50 LGRA 369 and in Drummoyne Municipal Council v Lewis and Ors (1974) 1 NSWLR 655 as authorities for the proposition that service of the orders could be effected after a finding of contempt had been made. The council submits that the Court has delivered no final judgment in the proceedings and is seised of jurisdiction. 6 Despite the observations of the Full Bench of the Federal Court of Australia in McCarthy v McIntyre [2000] FCA 1250 that evidence is required the Court accepts the explanation of counsel for the council that there was no strategy to deliberately conceal such evidence. In McCarthy judgment had been delivered, appealed and remitted. 7 The council submits that there is no prejudice to the respondents if the evidence is reopened since there have been prior proceedings relating to the orders. Correspondence between the legal advisors did not suggest that the respondents were unaware of the orders. The respondents submit that they will be prejudiced if reopening is permitted. They rely upon the failure of the applicant to comply with the Courts directions concerning service of affidavits and submit that in the absence of such evidence the Court would have been bound to dismiss the charges. 8 These proceedings have continued for 10 days, the hearing having commenced in January 2004. Evidence has been adduced from both parties and the hearing is currently at the stage of final addresses. The evidence to be adduced is confined to a discrete procedural issue which is not a matter of substance likely to prolong the hearing (compare Home Management Maintenance v Doyle and Anor (1992) 109 FLR 225). If leave to reopen is refused the council would be entitled to commence fresh proceedings based upon the same evidence: see Witham at 534. In VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 128 LGERA 419 the Court of Appeal considered that reopening should be permitted even though severe prejudice was claimed by the other party. 9 The interests of justice is to be the paramount consideration, not merely the interests of one party (see Planet Build (NSW) Pty Ltd v Lassgol Pty Ltd [2001] NSWCA 40 and also Reynolds v Whittens [2002] NSWSC 155). The Court is satisfied that the interests of justice require that the hearing be reopened solely for the purpose of allowing the council to tender evidence of service of the orders. 10 The Court grants leave to the applicant to adduce further evidence relating to the service of the orders the subject of these proceedings. 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.