Brown Brothers v Pittwater Council [2015] NSWCA 215

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brown Brothers v Pittwater Council [2015] NSWCA 215 Hearing dates: 28 and 29 August 2014 Date of orders: 24 July 2015 Decision date: 24 July 2015 Before: McColl JA at [1]; Macfarlan JA at [217]; Tobias AJA at [218] Decision: (1) Appeal allowed.

(2) Set aside the orders of Pepper J made on 20 December 2013.

(3) Grant leave to Mr Wayne Brown, Mr Gary Brown and Brown Brothers Waste Contractors Pty Limited to withdraw their pleas of guilty to the 2011 contempt charges entered on 21 October 2011.

(4) Remit the matter to a judge in the Land and Environment Court other than Pepper J for further determination according to law in accordance with the decision of this Court.

(5) Reserve the costs of the withdrawal application for determination by the judge who hears the remitted hearing.

(6) Respondent to pay the appellants' costs of the appeal. Catchwords: COURTS – Judges – bias – whether reasonable apprehension of bias or prejudgment – where judge made findings on relevant matters in previous proceedings involving one party – whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of the question judge s required to decide

COURTS – Judges – where litigant aware of ground for objection on basis of reasonable apprehension of bias or prejudgment during trial but did not object – whether failure to object constitutes waiver

PROCEDURAL FAIRNESS – contempt of court – application to withdraw guilty plea – where basis of application contention that guilty plea based on incorrect legal advice concerning proper construction of consent orders – where applicants contended it was arguable on proper construction of consent orders they were permitted to engage in conduct on which contempt charges based – whether primary judge denied appellants procedural fairness in finally determining construction of consent orders rather than determining whether case advanced as defence was arguable CONTEMPT – disobedience of court orders – construction of – whether order ambiguous – whether surrounding circumstances to be taken into account PROCEDURE – contempt of court – guilty plea – whether withdrawal of guilty pleas should be permitted – reliance on alleged incorrect legal advice – whether guilty pleas made with genuine consciousness of guilt