Auburn City Council v Zhu (No 2) [2012] NSWLEC 147

Land and Environment Court New South Wales

Medium Neutral Citation: Auburn City Council v Zhu (No 2) [2012] NSWLEC 147 Hearing dates: 2 July 2012 Decision date: 02 July 2012 Jurisdiction: Class 4 Before: Pepper J Decision: The council's notice of motion filed on 24 November 2011 is adjourned to 5 July 2012. Consequential orders made for the filing and serving of affidavit evidence. Catchwords: CONTEMPT: motion for contempt for non- compliance with orders to carry out works in civil enforcement proceedings - respondent partly completed the works but lacked sufficient financial capacity to complete the remainder of the necessary works - further time needed to effect total compliance - evidence relevant to adjournment application not in proper form - respondent unable to give evidence orally because interpreter not present and English language skills inadequate - hearing adjourned to permit the respondent to adduce evidence in affidavit form. Cases Cited: Auburn City Council v Zhu [2012] NSWLEC 88 Category: Procedural and other rulings Parties: Auburn City Council (Applicant) Ling Ling Zhu (Respondent) Representation: Mr Ian Woodward (Solicitor) (Applicant) Mr Edwin Kwan (Solicitor) (Respondent) Storey & Goughs Lawyers (Applicant) Pancific Legal (Respondent) File Number(s): 40990 of 2009

EX TEMPORE Judgment 1This is a notice of motion by Auburn City Council ("the council") brought against Ms Ling Ling Zhu, the respondent, for a declaration that she is in contempt of consent orders made by this Court on 30 April 2010 ("the 2010 orders") and that she be punished accordingly. 2The matter initially came before Biscoe J for hearing on 26 April 2012 (Auburn City Council v Zhu [2012] NSWLEC 88). On that occasion, the Court adjourned the hearing of the notice of motion for two months to enable Ms Zhu to comply fully with the 2010 orders. This period of time was required not only to carry out the works, but to raise the necessary funds to do so. At that time the council did not oppose the adjournment on the basis that the respondent proposed to comply with the orders. The council's position was that it only desired compliance with the 2010 orders, and not the punishment of the respondent. The council also indicated that if the works were carried out, it did not anticipate pressing the notice of motion for contempt except insofar as costs were concerned. 3When the motion came before me today, Ms Zhu once again applied for an adjournment of another two to three months to complete the works described in the 2010 orders. As the evidence of the council demonstrates, reasonable attempts have been made by her to comply with the orders, however, at this stage full compliance has not yet occurred. 4Mr Edwin Kwan, Ms Zhu's solicitor, explained to the Court that Ms Zhu is a divorced mother with three children and that the unlawful works which led to the 2010 orders were carried out by her former husband. Mr Kwan also told the Court that, because of her impecuniosity, at least two months is required in order for Ms Zhu to obtain adequate funding to complete the works ordered, including, in particular, the removal of rubbish that total compliance with the 2010 orders necessitates. 5After obtaining instructions, the council indicated that, similar to the last occasion when the matter was before the Court, although it was ready to proceed with the notice of motion, it would not oppose a further adjournment on the basis that it did not wish to punish Ms Zhu, it merely wanted to ensure compliance with the 2010 orders. The council again indicated that, provided the orders were carried out, it was unlikely to press the notice of motion for contempt save as to costs. 6Because this is the second time that such an indulgence has been sought by Ms Zhu, the Court indicated that it was not satisfied by her giving evidence relevant to any adjournment application from the bar table through her solicitor. The Court therefore proposed that Ms Zhu give oral evidence as to her current domestic and financial situation. Mr Kwan indicated, however, that this was not possible because Ms Zhu's English language skills were inadequate. 7The Court temporarily adjourned the hearing to ascertain whether or not an interpreter could be obtained. In the time available, no interpreter could be obtained and, in any event, in proceedings in Class 4 of the Court's jurisdiction, the obligation is on the party requiring an interpreter to organise the provision of one if needed. 8As a consequence, all parties agreed to adjourn the proceedings for three days to allow Ms Zhu to file and serve any evidence upon which she sought to rely in affidavit form. 9The orders of the Court are therefore as follows: 1.the notice of motion for contempt is stood over to 10.00 am 5 July 2012 before Pepper J; 2.the respondent is to file and serve any evidence upon which she seeks to rely, either in support of any application to further adjourn the notice of motion, or generally, by 12.00 pm 3 July 2012; 3.the applicant is to notify the respondent by 4.30 pm 3 July 2012 if it is likely to require the respondent for cross examination in respect of any evidence filed pursuant to order 2 above; 4.if the applicant does require the respondent for cross examination, the respondent is to ensure that an interpreter is present at the hearing of the notice of motion on 5 July 2012; 5.the applicant is to file and serve any evidence in reply to the evidence served by the respondent pursuant to order 2 above, by 12.00 pm 4 July 2012; 6.the costs of today are reserved; and 7.the parties have liberty to restore on 24 hours' notice.