Land and Environment Court New South Wales

• Medium Neutral Citation: Eurobodalla Shire Council v Gerondal (No 5) [2012] NSWLEC 180
• Hearing dates: 27 July 2012
• Decision date: 27 July 2012
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

(1) The respondent's notice of motion filed on 27 July 2012 is dismissed; (2) The respondent is to pay the applicant's costs of the respondent's notices of motion filed on 16 July 2012 and 27 July 2012 on an indemnity basis.

• Catchwords: JUDGMENTS AND ORDERS - Class 4 civil enforcement proceedings concerning waste on respondent's land - respondent's notices of motion after final judgment largely seeking to negate or undermine final orders in these proceedings and in related earlier Class 1 proceedings between the parties being the respondent's appeal against a council prevention notice.
• Legislation Cited: Land and Environment Court Act 1979 ss 17, 36, 56A; Protection of the Environment Operations Act 1997 ss 96, 216, 252, 289, Part 9.2; Land and Environment Court Rules 2007 r 6.3; Supreme Court Rules 1970 Part 55; Uniform Civil Procedure Rules 2005 r 36.4
• Cases Cited: Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217; Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46; Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146; Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217; Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77; Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91; Rosniak v Government Insurance Office (1997) 41 NSWLR 608; Sun Newspapers Pty Ltd v Brisbane TV Ltd [1989] FCA 534, 92 ALR 535; Z Ltd v A-Z [1982] QB 558
• Category: Procedural and other rulings
• Parties: Eurobodalla Shire Council (Applicant); Monica Netta Gerondal (Respondent)
• Representation: COUNSEL: Mr P W Larkin SC (Applicant); Mrs M Gerondal, in person (Respondent); SOLICITORS: Sparke Helmore (Applicant); N/A (Respondent)
• File Number(s): 40661/11

EX TEMPORE Judgment

1 For almost three years there has been disputation and litigation between Eurobodalla Shire Council and Mrs Monica Gerondal concerning a large amount of material that she collected and stored on her land at Bingie, which the Council determined was waste that must be removed. The genesis was in 2009 when the Council issued her with a prevention notice under s 96 of the Protection of the Environment Operations Act 1997 (POEO Act). It stated, in effect, that a lot of waste had been deposited on her land and that no development consent had been issued to use it as a waste facility. It required her to cease transporting waste to her land and to remove the waste material within three months to a place which can lawfully accept such waste material. She appealed on the merits against the prevention notice to this Court pursuant to s 289(1) of the POEO Act. In those Class 1 proceedings, a Commissioner upheld the appeal in part and varied the prevention notice: Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217. The prevention notice as varied required her to cease transporting waste to her property at Bingie, to prepare and submit for the Council's approval a plan of action for removal of the waste material, and to remove the waste material only to a place which can lawfully accept it. She appealed against the Commissioner's determination under s 56A(1) of the Land and Environment Court Act 1979. Craig J dismissed that appeal: Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77. She did not comply with the prevention notice as varied.

2 Consequently, the Council brought these Class 4 civil enforcement proceedings against Mrs Gerondal under s 252(1) of the POEO Act to remedy or restrain a breach of that Act, being her failure to comply with the prevention notice as varied. Four months ago I heard these proceedings and made a declaration that she had breached the POEO Act by failing to comply with the varied prevention notice and made consequential orders: Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46. They included orders that specified items and all other items which constitute "waste" within the meaning of the POEO Act (with certain exceptions) be removed only to a place which can lawfully accept such waste material, that if she did not completely comply within three months the Council was entitled to enter the property and carry out the works within six months, and that in that event she pay the Council's reasonable costs. On 28 June 2012, Pepper J, on the Council's motion, gave liberty to the Council to enter onto and inspect the property between 2 and 6 July 2012 (in order to ascertain whether Mrs Gerondal had complied with my orders and, if so, to what extent) and for slip rule corrections of two typographical errors: Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146.

3 With no regard to the finality of the orders made in these proceedings and the Class 1 proceedings, on 16 July 2012 Mrs Gerondal filed a notice of motion, which at the hearing today was dismissed by consent, and today filed in Court a substituted and expanded notice of motion claiming 15 orders, which I have heard. Most impermissibly seek to negate or undermine the final orders and decisions made in these proceedings and the Class 1 proceedings. Mrs Gerondal's affidavit read in support of her notice of motion is largely in the nature of contentions and indicates in its conclusion section that her overarching contentions are that the prevention notice was invalid, that she never breached it, that the Class 1 proceedings and these proceedings were out of time, and that the decisions in both proceedings are invalid.

4 Throughout these proceedings and the Class 1 proceedings, Mrs Gerondal has been self-represented.

5 Paragraph 1 of her notice of motion seeks a declaration that the Council has not complied with the requirements of the time in which summary proceedings may be commenced under s 216 of the POEO Act and that the Council's proceedings and the orders made in the Council's proceedings are consequently invalid and vexatious. This is an impermissible attack on final orders and, in any event, is misconceived. The s 216 time limit is for criminal proceedings. These proceedings and the Class 1 proceedings are civil proceedings.

6 Paragraph 2 of the notice of motion states:

Declaration that entry of the nominated authorised persons "Messrs Ladmore and Cummings" as described by Craig J at paragraph 38 of [2011] NSWLEC 77 and in the transcript of Murrell C 10929 of 2009 (23 April 2010) under oath are "Richard Anthony Cumming" and "Nathan Frank Ladmore" neither of whom appears as an employee of the Eurobodalla Shire Council at all times, and their evidence are [sic] invalid in respect of the POEO Act 1997.

7 The Commissioner's judgment at [11] - [17] refers to the evidence of council officers Mr Nathan Ladmore and Mr Richard Cumming. Their evidence is also referred to in Craig J's judgment at [9] - [10] and later, however his Honour referred to Mr Cumming as Mr Cummings. It is obscure, but I glean from what I have been told from the bar table that Mrs Gerondal's complaint is that Craig J's judgment referred to Mr Cumming as Mr Cummings and Mr Ladmore's middle name did not appear in his affidavit, therefore their evidence is "invalid". It is not apparent that such matters are significant or could conceivably lead to rejection of their evidence or to a different result in the Class 1 proceedings. In any event, this impermissibly seeks to undermine final orders made in other proceedings and cannot be entertained in these proceedings.

8 Paragraph 3 of the notice of motion seeks a declaration that the Commissioner in the Class 1 proceedings lacked jurisdiction. As I understand it, Mrs Gerondal alleges that this is because the Class 1 proceedings were actually Class 4 proceedings. Commissioners of this Court have no jurisdiction in Class 4 proceedings. An attack by notice of motion in these finalised proceedings on final orders made in other proceedings cannot be entertained. In any case, there is no substance in the allegation that the Class 1 proceedings were actually Class 4 proceedings. The appeal to the Court against the prevention notice, which was heard and disposed of by a Commissioner, was under s 289(1) (within Part 9.2) of the POEO Act. Such appeals are assigned to Class 1 of this Court's jurisdiction: s 17(a) Land and Environment Court Act. Proceedings in Classes 1, 2 and 3 of the Court's jurisdiction, which (with some Class 8 proceedings) constitute the Court's civil merits jurisdiction, may be, and routinely are, directed to be heard and disposed of by Commissioners: s 36 Land and Environment Court Act.

9 Paragraphs 4, 5 and 6 of the notice of motion appear to be consequential upon the relief sought in paragraphs 1, 2 and 3. Paragraph 4 seeks an order that the orders I made and the orders made in the Class 1 proceedings by the Commissioner and affirmed by Craig J be set aside. Paragraphs 5 and 6 seek orders that all previous costs orders made against Mrs Gerondal in all previous proceedings be set aside and that the Council pay her the costs of those proceedings. I cannot see any foundation for these proposed orders.

10 Paragraphs 7 and 8 of the notice of motion appear to be related and state:

7. In respect of the LEP 2011 for Eurobodalla Environmental Zone overlays of E2 and E4 that of the EEC and Native Vegetation Act 2003 and Endangered Species Conservations Act 1995 as scientifically mapped on 3 March 2010 by the Eurobodalla Shire Council be acknowledged as applicable on the land situated at Lot 1, DP 806104 No. 19 Munjerro Lane, Bingie, New South Wales until otherwise gazetted on 20 July 2012. (emphasis in the notice of motion)

8. Any Orders made in futurity from 2 July 2012 be stayed pending the review and gazettal of the Eurobodalla Rural Overlays E2 and E4 of the 2011 LEP including environmental zoning overlays to protect and preserve the EEC and native vegetation from damage or likely damage within the provisions of sections 253 and 253A of the Protection of the Environment Operations Act 1997 up to and including 15 September 2012 or the time of the gazettal of the 2011 LEP. (emphasis in the notice of motion)

11 These paragraphs are difficult to understand and in any event cannot be employed in this way after final judgment. There is nothing before me to suggest that the Council has done, or is seeking to do, anything which infringes a local environmental plan. Insofar as Mrs Gerondal is making an allegation regarding the sensitivity of the property and the presence of an EEC (endangered ecological community), such matters were raised by her and determined by the Commissioner in the appeal against the prevention notice at [30], [37] and [40]. Craig J dismissed her appeal against the Commissioner's decision and at [59] - [60] and [62] referred to [37] and [40] of the Commissioner's judgment. His Honour disposed of that issue. At the final hearing before me months ago Mrs Gerondal alleged from the bar table without evidence that she could not remove the items from the land because of the presence of an EEC, the sensitive nature of the land and alleged restrictions under a local environmental plan, which (with other things) I did not accept at [17].

12 Paragraph 9 of the notice of motion states: "That where the sealed judgment of Pepper J was not in the hands of all parties until after 6 July 2012" (emphasis in the notice of motion). Paragraph 9 appears to be related to paragraph 10, which states: "That any invited trespassers by Eurobodalla Shire Council and quotes derived therefrom until after the close of business on 9 July 2012 are invalid". I gather from what I have been told by Mrs Gerondal that the complaint is that when Pepper J made oral orders on 28 June 2012, including an order that the Council had liberty to enter and inspect Mrs Gerondal's property between 2 and 6 July, it is said that her Honour indicated she would endeavour to email a copy of the orders to Mrs Gerondal the following day. Mrs Gerondal alleges that she did not receive a copy of the orders by email, that she did not see the orders in writing until she received the reasons for judgment containing the orders on 9 July 2012, and that in the meantime council officers entered her property to carry out the inspection that her Honour's orders permitted. As I understand her, Mrs Gerondal says that, as she had not seen the orders in writing by that time, she did not unlock a gate to allow the council officers to enter the property and the council officers trespassed. I do not propose to inquire into any of these events or alleged events because they relate to an alleged trespass, which is not a matter that can legitimately be raised in these finalised proceedings. Further, if Mrs Gerondal is contending that the oral order made by Pepper J granting the Council leave to enter and inspect was not operative until she received a copy in writing, I reject the contention. Mrs Gerondal was present in court when Pepper J made the order orally. An order pronounced orally in court takes effect at the very moment it is pronounced, even though it has not then been drawn up or served on the respondent: r 36.4 Uniform Civil Procedure Rules 2005; Z Ltd v A-Z [1982] QB 558 at 572G. The contempt rules in Part 55 of the Supreme Court Rules 1970, which have been adopted in r 6.3 of the Land and Environment Court Rules 2007, do not mandate service of an oral order. Disobedience of an oral order is a contempt of court if the alleged contemnor knew of the order, for example because she was in court when the order was made: Sun Newspapers Pty Ltd v Brisbane TV Ltd [1989] FCA 534, 92 ALR 535 at 538; Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91 at [23] - [24], [91].

13 Paragraph 11 of the notice of motion states: "That if there are conditions of contract between the Eurobodalla Shire Council and the chosen contractor, such conditions are to be made fully transparent to the public". I cannot see a basis upon which such an order should be made in these finalised proceedings.

14 Paragraph 12 of the notice of motion states: "That all quotes made by all contractors be made transparent to the owner of the land". If this is to be understood as a plea by Mrs Gerondal for her (as the owner of the land) to see copies of the quotes obtained by the Council from contractors for removal of the materials from her land pursuant to the orders that this Court has made, then the response of senior counsel for the Council is that it had no prior notice that this is what she sought until her notice of motion was filed today and that instructions from the Council would be sought. I consider this to be a reasonable response in the circumstances. Under the orders of the Court, Mrs Gerondal has to pay the Council's reasonable costs of such contractors. The reasonableness of the Council's contractor's costs would be relevant in any assessment of costs. On a costs assessment, if such costs or their reasonableness were in issue she would be entitled to see any such quotes. These matters may be raised before a costs assessor but I consider that no basis has been established for the Court to now become involved such as by making the order that she seeks.

15 Paragraphs 13 and 14 of the notice of motion appear to be related and state:

13. That the proceeds of sale of any items removed from the land be fully paid to the owner of the land before 15 September 2012 in such amounts with documented deduction for the costs of transportation directly involved with such removal.   

14.  That the chosen contractor has no legal ownership of any of the items removed from my land and the items so removed remain as my property.

16 I do not construe the orders that have been made as empowering the Council or its contractor to sell any of the items they remove from the property without Mrs Gerondal's consent. There is no evidence that the Council or its contractor intends to sell any items they may remove from the property without her consent. Even if the Council or its contractor had a power of sale and sold such items, Mrs Gerondal would have to be credited with the sale proceeds when determining, on an assessment of costs, the reasonable costs of the Council in carrying out the works, for which she is liable under the orders. In the circumstances, I do not think it appropriate to make the orders sought.

17 Paragraph 15 of the notice of motion states: "Declaration that all parties must be informed in writing before any further inspection takes place". As there was no prior notice to the Council that anything of this nature would be sought until this morning, senior counsel for the Council indicated that he would obtain instructions. I do not see why a hypothetical future inspection should now be considered by the Court given that the only order that has been made permitting the Council to inspect the land was for inspection between 2 and 6 July 2012, which is in the past. Accordingly, I decline to make the proposed declaration.

18 For these reasons I propose to dismiss the notice of motion.

19 Costs usually follow the event in Class 4 proceedings such as these. In my view, Mrs Gerondal should pay the Council's costs of her two notices of motion. The Council submits, and I accept, that she should pay those costs on an indemnity basis for two reasons, which I regard as related. Whilst allowing for the fact that Mrs Gerondal is a self-represented litigant, I accept the submission. The first reason is that, properly advised, she should have known that her notices of motion had no chance of success: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615 -616. Secondly, it was unreasonable for her not to accept the Council's Calderbank offer to settle her notice of motion filed on 16 July 2012: Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217 at [8] - [10]. On 19 July 2012, shortly after the filing of her first notice of motion (substituted by her expanded notice of motion filed this morning), the Council's solicitors wrote to Mrs Gerondal advancing arguments as to why the motion was misconceived and bound to be dismissed, and stating that if she withdrew the motion by 23 July the Council would not seek an order for its costs of the motion, but if she did not then it would seek dismissal of the motion and costs on an indemnity basis. That was confirmed by the solicitors' further letter to her of 23 July 2012. There was no response to either letter. Mrs Gerondal has denied from the bar table that she saw the letters before this morning. The evidence establishes that the first letter was sent to her by express post and email, and that the second letter was sent by email (although they are also marked as being sent by facsimile, there were facsimile transmission errors). Mrs Gerondal had earlier provided the Council with these postal, email and facsimile addresses. If she had checked her post, emails or facsimiles, as she should have done given that she had reactivated the litigation, she would have seen them. I infer that it is probable that she did see them shortly after they were sent and I do not accept her denial. The non-acceptance of her denial is fortified by the fact that in Pepper J's reasons for judgment, Mrs Gerondal was found to be untruthful in evidence that she gave before her Honour: at [17], [22].

20 The orders of the Court are as follows:

(1) The respondent's notice of motion filed on 27 July 2012 is dismissed.

(2) The respondent is to pay the applicant's costs of the respondent's notices of motion filed on 16 July 2012 and 27 July 2012 on an indemnity basis.

Decision last updated: 02 August 2012