Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 2) [2013] NSWLEC 21

Land and Environment Court New South Wales

Medium Neutral Citation: Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 2) [2013] NSWLEC 21 Hearing dates: 19 February 2013 Decision date: 27 March 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: Reasons for the following rulings during the hearing on respondents' objections to evidence: 1. Overrule objection to evidence that respondents conducted a business enterprise of providing accommodation involving subject premises and three other premises on ground that not relevant to charges of contempt as particularised. 2. Overrule objection to Bondi International House and Bondi Share House internet marketing websites to prove truth of representations therein on the grounds that it is hearsay or should be excluded under s 135 Evidence Act 1995. Uphold same objection to other internet marketing websites. 3. Grant leave pursuant to ss 50 and 192 Evidence Act to rely on surveillance report as a summary of lengthy surveillance recorded on DVD. 4. Overrule objection to surveillance evidence on grounds that obtained improperly or unlawfully and pursuant to s 138 Evidence Act should not be admitted, or alternatively pursuant to s 135 the Court should refuse to admit it. 5. Overrule objection to police officer's statement on the same grounds. Catchwords: EVIDENCE - reasons for rulings on objections to evidence at trial of respondents for contempt for failing to obey orders of the Court not to cause or permit use of premises for backpackers accommodation as defined in a local environmental plan - whether evidence of an organised business enterprise relevant to the charges as particularised - whether evidence of an organised business enterprise offends the tendency rule in s 97 Evidence Act - whether internet marketing websites are hearsay or within admissions or business records exceptions to the hearsay rule in the Evidence Act - whether leave should be granted to rely on a surveillance report as a summary of a lengthy DVD recording under ss 50 and 192 Evidence Act - whether evidence of inquiry agent inside residential premises improperly or unlawfully obtained such that it is inadmissible under s 138 Evidence Act- alternatively whether its probative value is substantially outweighed by the damage that it might be unfairly prejudicial to respondents or be misleading or confusing or cause or result in an undue waste of time such that the court should refuse to admit it under s 135 Evidence Act - whether a police officer's statement of evidence inside residential premises improperly or unlawfully obtained such that it is inadmissible under s 138 Evidence Act or should be excluded under s 135. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 118A, 118J Evidence Act 1995 ss 50, 55, 59, 69, 81, 87, 97, 135, 138, 192, Dictionary Listening Devices Act 1984 Local Government Act 1993 ss 191, 200 Protection of the Environment Operations Act 1997 ss 280, 281 Surveillance Devices Act 2007 Land and Environment Court Rules 2007 r 6.3 Supreme Court Rules 1970 Pt 55 r 7 Waverley Local Environmental Plan 1996 Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 417, 191 FLR 385 Coward v Stapleton [1953] HCA 48, 90 CLR 573 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361, 98 A Crim R 481 Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 Harmsworth v Harmsworth [1987] 3 All ER 816 Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, 221 ALR 823 Lin v Fairfield City Council [2007] NSWSC 568, 159 LGERA 264 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Parker v Comptroller-General of Customs [2007] NSWCA 348, 232 FLR 362 Rice v Tricouris [2000] VSC 73, 110 A Crim R 86 Ridgeway v The Queen [1995] HCA 66, 184 CLR 19 Roach v Page (No 27) [2003] NSWSC 1046 Robinson v Woolworths Ltd [2005] NSWCCA 426, 64 NSWLR 612 See v Hardman [2002] NSWSC 234 Slaveski v Victoria [2010] VSC 441 Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349, 83 ATR 612 Texts Cited: Australian Law Reform Commission, ALRC 26 Evidence Volume 1, (1985) Category: Procedural and other rulings Parties: Waverley Council (Applicant) Tovir Investments Pty Ltd (First Respondent) Michael Rappaport (Second Respondent) Representation: COUNSEL: T Howard (Applicant) S Duggan SC and M Seymour (Respondents) SOLICITORS: Sparke Helmore (Applicant) Gadens (Respondents) File Number(s): 40917 of 2010 and 40918 of 2010