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Darren Kruse
Darren Kruse, Solicitor
Category: Australia Law
Satisfied Customers: 16
Experience:  Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.
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Case of non-compliance with a Land and Environment Court Order

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Case of non-compliance with a Land and Environment Court Order dismissed by the Magistrate in a Local Court when both the Local Council prosecutor and the legal representative for the Council did not appear.
Question: Can the charge of non-compliance with the same Order proceed in the Land and Environment Court, given a likely issue of autrefois acquit (through dismissal) or double jeopardy ??

Much appreciating your valued opinion,

I have only ever seen the doctrine of double jeopardy discussed in the criminal law context, so this looked interesting to me.

A bit of research into reopening a case in the NSW L&EC led to this : discussing the case of

Wollongong City Council v Falamaki (No.5)[2009] NSWLEC 117

"Justice Sheahan said that the law has a long recognised doctrine of finality in litigation. He noted that a statutory rule may allow a case to be reopened. However, to do so requires exceptional circumstances.

The Court will not respond to an undefined feeling that injustice has occurred.

Justice Sheahan noted that section 56 of the Land & Environment Court Act 1979 states that the Court’s orders are final and conclusive. After orders have been entered, the only options open to an unsuccessful party are to:
(a) appeal,
(b) apply for a correction under the slip rule, and
(c) challenge the judgment on the grounds of fraud or bad faith.

3.3 Decision: Justice Sheahan said that the previous judgments were complete on their face and regularly made.

Accordingly, the only option open to Dr Falamaki was to appeal to a higher Court. Justice Sheahan dismissed Dr Falamaki’s motion.

Doing an Austlii noteup on s56 of the L&EC Act leads to

Pittwater Council v Brown Brothers Waste Contractors Pty Limited [2009] NSWLEC 50

25 In my opinion, however, none of these rules enable the court to vary the orders made on 9 August 2007. Apart from accidental slip or fraud, the power of the court under the rules to extend or abridge any time fixed by an order of the court, or to set aside or vary any judgment or order, can only apply to interlocutory, conditional or procedural orders and not to any final orders. This is because s 56 of the Land and Environment Court Act states that, except in the case of an appeal, “a decision of the court shall be final and conclusive”. A “decision”, in my opinion, means a final judgment or order. A rule of the court cannot be used to alter the final decision or to vary its terms - there must be finality in litigation to ensure public confidence in the administration of justice.

You case is similar in that you had a L&EC order dismissed by a local Court Magistrate, but similar consideration will apply. Not turning up isn't an opportunity to invoke the slip rule.

Therefore, the Council's only options in my opinion are to either:
a) appeal the decision to a higher court (if they are within time)

b) seek leave of the Local Court to reopen the case because of a breach of procedural fairness - ie maybe they never were notified that the matter was being heard that day.

c) serve you with a different order and start the process afresh.

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Customer: replied 6 years ago.
As said, the Local Court Magistrate dismissed the charge of failing to comply with the Land and Environment Court order (in May 2010, under section 251 of the Protection of the Environment Operations Act 1997). The order specified compliance by December 2009 and subsequently has been extended to a date in July 2010 through Notice of Motion proceedings in the L&E Court.

In February 2011, in the L&E Court, the Council re-started with a charge of having failed to comply with the same order by the extended date of July 2010.

In your valued opinion, while in the order, the substance/direction to be complied with has not been changed, is this a fresh charge just because the compliance date of the order has been changed ? Further, the Council has added a charge of contempt of court. In your valued opinion, is there still a likely issue of autrefois acquit or double jeopardy based on the dismissal of the charge by the Magistrate in the (lower) Local Court ? My understanding is that the 2011 L&E Court proceedings are not presented as an appeal against the Magistrate's decision of dismissing the section 251 charge; also, in 2010, the Magistrate did not dismiss (the substance/direction and compliance date) of the original order.

Much appreciating your valued opinion,

I've seen your update.

I will have to get to this tonight - sorry, but I have a totally full day today.
Customer: replied 6 years ago.
I thank you for kindly making your time available for giving me your much valued answer to this updated situation.

Meantime, between now and the hearing date set on this coming Wednesday, the Council has made me a "settlement offer" to firstly comply with the order in the Council's own terms and secondly on a later date (this coming Wednesday's hearing posponed for 28 days) that I still have to face the charges of non-compliance and contempt of court but this time showing some evidence of contrition. I totally rejected the Council's proposed "offer" the terms of which reads like letting a fox (the Council) to be in charge of a chicken coop (my property) ! The offer, if accepted, will allow the Council to commit conversion in common law of tort.

The above latest background information is for your reference only and is not a further question.

I await for your answer with your much valued opinion to my previous question on whether or not the latest charge is a fresh charge for non-compliance of the same order (with only the compliance date changed) and the applicability of autrefois acquit/double jeopardy.

With kind regards from Paul