Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771

Land and Environment Court of New South Wales

CITATION : Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771 revised - 17/08/2005 Randwick City Council PARTIES : Peta Athens Athens Holdings Pty Limited (ACN 001 166 552) FILE NUMBER(S) : 40097 of 2000 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- hearsay evidence - admissibility - civil proceedings - whether makers of statement unavailable - whether notice required LEGISLATION CITED: Evidence Act 1995 ss 63(2), 65, 67, 135 Australasian Meat Industries Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; CASES CITED: Australian Consolidated Press v Morgan and Anor (1965) 112 CLR 483; O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59; Witham v Holloway (1995) 183 CLR 525 DATES OF HEARING: 28/01/2004, 29/01/2004, 30/01/2004 EX TEMPORE 01/30/2004 JUDGMENT DATE :

APPLICANT A Thompson SOLICITOR Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT M Ramage QC SOLICITORS Levitt Robinson Solicitors and Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Cowdroy J

30 January 2004

40097 of 2000

RANDWICK CITY COUNCIL Applicant

PETA ATHENS First Respondent

ATHENS HOLDINGS PTY LIMITED Second Respondent

JUDGMENT No 11 1 Cowdroy J: As I have already said, these proceedings are not criminal. This is clearly established by authority, the clearest statement of which is contained in O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59 at 62, where Lord Justice Cotton said: The present proceeding is for a contempt of Court. Of course, there are many contempts of Court that are not of a criminal nature; for instance, where a man does not obey an order of the Court made in some civil proceeding, to do or to abstain from doing something – as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt – that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it.