Mosman Municipal Council v Kelly (No 3)

(2009) 167 LGERA 91; [2009] NSWLEC 92

NSW Land and Environment Court

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Interrogate

Catchwords

1. Contempt
2. › Civil contempt
3. › Disobedience of court order
4. › Order requiring act within specified time
5. › Whether proceeding for criminal or civil contempt
6. › Whether contumacious disobedience must be alleged in statement of charge
7. › Supreme Court Rules 1970 (NSW), Pt 55 rr 7, 13
1. Contempt
2. › Civil contempt
3. › Disobedience of court order
4. › Distinction between civil and criminal contempt
5. › Whether contempt proceedings for breach of mandatory order with expired time limit are necessarily punitive and therefore criminal
6. › Whether breach of order that cannot be remedied is civil or criminal contempt
1. Contempt
2. › Statement of charge
3. › Sufficiency
4. › Whether statement of charge must allege contumacious disobedience
5. › Whether contumacy relevant to liability or only to penalty
6. › Supreme Court Rules 1970 (NSW), Pt 55 r 7
1. Contempt
2. › Service of order
3. › Whether service of sealed order with penal notice required where only fine sought
4. › Distinction between enforcement by committal or sequestration and enforcement by fine
5. › Uniform Civil Procedure Rules 2005 (NSW), rr 40.6, 40.7
6. › Supreme Court Rules 1970 (NSW), Pt 55

Quick Take

Contempt proceedings for disobedience of a mandatory court order requiring an act within a specified time are civil contempt proceedings, even where the time for compliance has expired and the breach cannot literally be remedied, provided the proceedings serve a coercive or deterrent purpose. Where only a fine is sought, the service requirements of UCPR 40.7 (sealed copy with penal notice) do not apply; it is sufficient that the contemnor knew of the order. Contumacy need not be alleged in the statement of charge because it is relevant only to penalty, not to liability for contempt.