Land and Environment Court of New South Wales CITATION : Randwick City Council v Athens and Anor (No. 8) [2004] NSWLEC 219 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 :- whether applicant has a right to make submissions in reply in proceedings for contempt Criminal Procedure Act 1986, s 3, s28(1), s 38, s 160 LEGISLATION CITED: Land and Environment Court Act 1979, s 20(2), s 33(2) Land and Environment Court Rules 1996, Pt 1 r 6, Pt 6 r 2 Supreme Court Rules 1970, Pt 55 In re The County Council of Derbyshire and Mayor and Ors [1896] 2 QB 53; CASES CITED: The Mayor of the County Borough of Derby and Ors v The Derbyshire County Council [1897] AC 550; Witham v Holloway (1994-1995) 183 CLR 525; Zimmerman v Inland Revenue Commissioners [1960] NZLR 8 DATES OF HEARING: 22/04/2004 EX TEMPORE 04/22/2004 JUDGMENT DATE : APPLICANT Mr A. Thompson (Barrister) SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENTS 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 22 April 2004 Randwick City Council Applicant v Peta Athens First Respondent Athens Holding Pty Limited (ACN 001 166 552) Second Respondent Judgment No. 8 - Interlocutory 1 Objection is taken by the alleged contemnors ("the respondents") to the applicant calling any case in reply. The objection is predicated upon the provisions of the Criminal Procedure Act 1986 ("the Act"). The provisions of section 28(1) of the Act provide:- (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. Section 38 of the Act provides:- In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence. Section 160 of the Act provides:- (1) An accused person or his or her counsel may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury. (2) If, in the accused person's closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion. 2 The respondents submit that the provisions of section 160(2) of the Act apply to these proceedings with the result that the applicant does have the right to an address in reply other than by leave. 3 The applicant submits that the Act is directed at the prosecution of indictable offences and has no application to proceedings for contempt of court. The applicant relies upon the definition of "offence" in the definition contained in section 3 to the Act which provides:- offence means an offence against the laws of the State. 4 The matter presently before this Court comprises an alleged contempt of the orders of the Court. In Witham v Holloway (1994-1995) 183 CLR 525 at page 534, the High Court of Australia confirmed that contempt proceedings whilst essentially criminal in nature, are not to be equated with criminal proceedings. At page 534 Brennan J, Deane J, Toohey J and Gaudron J 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. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing. 5 Additionally, definition of "offence" connotes an act or default contrary to law which attracts a penalty, such as an action which offends against some statutory provision or involves some crime or misdemeanour known to common law. In re The County Council of Derbyshire and Mayor and Ors [1896] 2 QB 53 (and on appeal to the House of Lords The Mayor of the County Borough of Derby and Ors v The Derbyshire County Council [1897] AC 550) is authority for the proposition that, while the use of the word offence is not conclusive in creating a misdemeanour, nonetheless the criterion is whether it is followed by a penalty: see Zimmerman v Inland Revenue Commissioners [1960] NZLR 8 per Hardie Boys J at page 13. 6 Proceedings for contempt are not criminal proceedings, but remain civil proceedings. Further, no penalties are prescribed for a proven disobedience of the Court's order. Contempt proceedings are not criminal in nature, nor does contempt involve an "offence" as defined in section 3 of the Act. Accordingly, the provisions of the Act do not apply to these proceedings. 7 The notice of motion alleging contempt has been issued in class 4 proceedings of the Court's jurisdiction. Part 6 rule 2 of the Land and Environment Court Rules 1996 ("the Rules") adopts Part 55 of the Supreme Court Rules 1970 ("the Supreme Court Rules"). Part 55 of the Supreme Court Rules makes provision for proceedings to be instituted for contempt of Court. 8 Section 20(2) of the Land and Environment Court Act 1979 ("the Court Act") provides:- (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and (d) whether or not as provided by section 68 of the Supreme Court Act 1970 —to award damages for a breach of a development contract. 9 The functions of this Court are classified by the Court Act. By virtue of section 33(2) of the Court Act it is provided that classes 4, 5, 6 and 7 of the Court's jurisdiction shall be exercised by a judge. Part 1 rule 6 of the Rules provides:- In any proceedings the Court may give directions as to the procedure to be followed in respect of a matter not dealt with by the Act or these rules, or by any law or the practice of the Court. 10 The Rules have adopted Part 55 of the rules of the Supreme Court dealing with the provision for contempt of Court. The latter rules make provision for the order in which addresses are to be provided. The Court is accordingly empowered to apply the usual procedure applicable in class 4 civil jurisdiction. Such procedure permits the commencing party to address in reply at the conclusion of the evidence, if evidence is called by the defendant. In this case the Court proposes to adopt that course and to permit an address in reply by the applicant. 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