Land and Environment Court New South Wales Medium Neutral Citation: Wollongong City Council v Frames & Trusses (NSW) Pty Limited (No 2) [2014] NSWLEC 135 Hearing dates: 2 September 2014 Decision date: 02 September 2014 Jurisdiction: Class 4 Before: Sheahan J Decision: (1) The defendant's objections to the prosecutor's Notice of Motion and Statement of Charge are dismissed. (2) The prosecutor's applications to amend the Notice of Motion and Statement of Charge are allowed. (3) Costs to be costs in the cause. Catchwords: CONTEMPT: civil or criminal? - adequacy of the specification of the alleged contempt - amendment of the Notice of Motion and Statement of Charge - principles to apply. Legislation Cited: Criminal Procedure Act 1986 Land and Environment Court Rules 2007 Supreme Court Rules 1970 Cases Cited: Borodin v R [2006] NSWCCA 83 Burwood Council v Steve Nolan Constructions Pty Ltd & Anor [2014] NSWLEC 54 Chiltern District Council v Keane [1985] 1 WLR 179 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 lnghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 McDonnell v Novello [2006] NSWSC 1186 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 Wollongong City Council v Frames & Trusses (NSW) Pty Limited [2014] NSWLEC 60 Category: Procedural and other rulings Parties: Wollongong City Council (Applicant/Prosecutor) Frames & Trusses (NSW) Pty Limited (Respondent/Defendant) Representation: Mr R O'Gorman-Hughes, barrister (Prosecutor) Mr T Lynch, SC with Mr D Neggo, barrister (Defendant) Wollongong City Council (Prosecutor) Ghobrial Legal (Defendant) File Number(s): 40359 of 2013 EXTEMPORE Judgment 1The Council has sought to charge the respondent to these Class 4 proceedings with contempt of court, and, when the hearing commenced this morning, the prosecutor sought to amend its Notice of Motion ("NOM") and Statement of Charge ("SOC"), and the defendant sought to have the contempt proceedings dismissed. 2The substantive proceedings were resolved by the making of consent orders by Pepper J on 22 October 2013. Orders 1, 2 and 6 provided as follows: 1. The Respondent, its servants and agents are restrained from using, causing, suffering or permitting to be used Lots 17 and 18 DP 262279 otherwise known as 70-72 Princes Highway Yallah ("the Subject Property") for the purpose of assembling, or assembling and storing, frames and trusses. 2. Order 1 is suspended until 1 March 2014. ... 6. In the event that an application is approved or agreed by Council that is inconsistent with the above orders, the parties are at liberty to approach the Court to vary these orders to ensure consistency with that approval or agreement. 3On 2 May 2014, the Council granted a Development Consent which enlivened Order 6. 4A joint application was made by the parties, on or about 3 April, to set aside those 3 and 2 other orders of 22 October 2013, with effect from 2 May 2014. Pepper J made the "set aside" order, by consent, on 16 May, but with effect from 2 May ([2014] NSWLEC 60). 5Meanwhile, on 14 May 2014, the Council had filed its NOM and SOC for contempt. 6Apart from costs and any "further" orders, the Council sought in the NOM an Order: 1. That the Respondent Frames & Trusses (NSW) Pty Limited be punished for contempt of the orders of this Honourable Court made 22 October 2013. 7The SOC stated the charge thus: The Respondent Frames & Trusses (NSW) Pty Limited, by its servants and agents, has disobeyed the orders of this Honourable Court made on 22 October 2013 in that the Respondent, its servants and agents have used Lots 17 and 18 DP 262279 otherwise known as 70-72 Princes Highway Yallah for the purpose of assembling and storing frames and trusses, contrary to order 1 of the orders made by this Honourable Court, a copy of which is annexed hereto and marked with the letter "A". 8Annexure "A" was a complete copy of the orders of 22 October 2013, initialled by Pepper J. 9The charge came before the List Judge (Craig J) on 13 June 2014. No plea was entered, and the Registrar allocated these hearing dates, but no substantial directions appear to have been made. 10On 1 September, the prosecutor lodged with the Court, some written submissions on conviction, in which (at pars 14 and 15) counsel for the Council (Mr O'Gorman-Hughes) made clear that the Council sought imposition of a fine, and not sequestration of property. 11On 2 September, counsel for the defendant (Messrs Lynch SC and Neggo) made written submissions that (par 11) there was "no legally sufficient SOC", and so the NOM should be dismissed. 12At the conclusion of his brief oral opening this morning, Mr O'Gorman-Hughes sought to amend both the NOM and the SOC. 13In the case of the NOM, the amendment sought would add the words "by fine" after the word "punished" in the relevant paragraph of the NOM (par 1) quoted above (at [6]). 14In the case of the SOC, the charge would be reframed as follows (emphasis added to indicate changes): The Respondent Frames & Trusses (NSW) Pty Limited, by its servants and/or agents, has disobeyed the orders of this Honourable Court made on 22 October 2013 in that between 1 March 2014 and 29 April 2014 the Respondent, by its servants and/or agents, used Lots 17 and 18 DP 262279 otherwise known as 70-72 Princes Highway Yallah for the purpose of assembling and storing frames and trusses, contrary to order 1 of the orders made by this Honourable Court, a copy of which is annexed hereto and marked with the letter "A". 15Annexure "A" (the orders of 22 October 2013) would be unaffected by the amendments. 16Rule 6.3 of the Land and Environment Court Rules 2007 makes clear that, so far as applicable, Part 55 of the Supreme Court Rules 1970 applies to contempt proceedings in this Court. 17Part 55 Rules 6 and 7 lay down the NOM/SOC procedure, and Rule 7 requires that the SOC "specify" the alleged contempt. 18Mr Lynch SC contends that the SOC commencing this contempt proceeding did not do so, in that it failed to "identify the precise acts of the alleged contemnor" (subs par 6), upon which the prosecutor relies. No particulars of the usual kind were provided (or sought). The SOC cannot "merely couple the language of an order with a bare allegation of breach" (subs par 7). 19He relied upon the following authorities: Burwood Council v Steve Nolan Constructions Pty Ltd & Anor ("Nolan") [2014] NSWLEC 54; McDonnell v Novello [2006] NSWSC 1186; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619; lnghams Enterprises Pty Ltd v Timania Pty Ltd ("Inghams") [2005] FCAFC 155; Matthews v Australian Securities and Investments Commission [2009] NSWCA 155, and cases upon which they rely, such as Chiltern District Council v Keane [1985] 1 WLR 179. 20On behalf of the prosecutor, Mr O'Gorman-Hughes relied on those cases, and also on Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758, and Mosman Municipal Council v Kelly (No 3) ("Kelly") [2009] NSWLEC 92; (2009) 167 LGERA 91. 21He submits that the orders of 22 October 2013, annexed to the SOC are not "extrinsic materials"; they are the particulars, and they are sufficiently specific in respect of what uses or activities are said to offend them, and how. 22In so far as no specific period of breach is included in the SOC, he submits that it would be clearly apparent that no breach could occur until 1 March (the end of the suspension of Order 1, nominated in Order 2), and that the period of alleged breach must end by 13 May, the date of the signing of the contempt process by Council's solicitor. 23He refutes the asserted defects in the NOM and SOC, and submits that the amendments proposed cause neither unfairness nor prejudice to the defendant. In effect those amendments could be said to be to the defendant's advantage, or at least neutral. 24On the principles in Kelly (at [58] - [59]), these proceedings would involve contempt which is "criminal", rather than "civil", in character. In that circumstance, the Court would need to invoke s 21(1) of the Criminal Procedure Act 1986 in order to allow the amendment to correct a defect. However, Mr O'Gorman-Hughes submits that the charge as framed is not defective, and, as the defendant would not be "irreparably prejudiced", and as the loss of "some tactical advantage" is not sufficient to ground a refusal of leave (Borodin v R [2006] NSWCCA 83), the amendments should be allowed. 25Turning to the various contempt authorities I have listed earlier, I note that I closely considered most, if not all, of them in Nolan. 26The correctness of my analysis, and my distillation of the correct principles, seem to be common ground between the parties - it is only their correct application to the case at hand which is in dispute, and their sources must be considered in their own particular context. 27Does the SOC give the defendant enough information to enable it to meet the charge? 28Having to "deduce" some particulars from an annexure to which the defendant signified its consent, does not amount to requiring of the defendant a degree of "inference" which the authorities find too broad, and offensive. 29I think this prosecution satisfies that test (see Keane at p622, and Nolan at [63]), and the tests articulated by the Full Federal Court in Inghams (at [32] - [34]). The prosecutor has properly pleaded a case, and not just acted fairly towards the defendant (to use the formulation at the conclusion of Mr Lynch's oral submissions in reply). 30The defendant's objections to the initiating documents are dismissed. 31In accordance with Inghams ([32](d)), I will allow the amendments sought by the prosecutor, and we should now proceed with the matter, as envisaged by Inghams (at [32](e)). 32The parties' costs of this argument will be their costs in the cause. ********** 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. Decision last updated: 03 September 2014