the Minister of Territories v Gregory's (Properties) Pty Limited [1987] ACTSC 34 (15 May 1987)

SUPREME COURT OF THE ACT

THE MINISTER OF STATE FOR TERRITORIES v. GREGORY'S (PROPERTIES) PTY LIMITED
S.C. No. 823 of 1984
S.C. No. 824 of 1984
Contempt of Court

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Contempt of Court - Order of Court forbidding parking "in the course of the conduct of (a) business" - Meaning of that phrase considered.

HEARING

CANBERRA
15:5:1987

ORDER

Each of the applications made by notices of motion dated 2 October 1986 be dismissed.

The applicant Minister pay the respondent's costs of and incidental to the applications.

DECISION

The respondent is and was at all material times the lessee from the Commonwealth of Australia of Blocks 8 and 9, Section 21, Braddon in the Australian Capital Territory.

2. On 23 August 1984 the applicant Minister instituted proceedings separately in respect of each of those blocks seeking orders that, pursuant to s.9A of the City Area Leases Ordinance 1936, the respondent should be directed not to use the land or to permit the land to be used for an unauthorised purpose. Action No. S.C. 823 of 1984 was concerned with Block 9, Section 21 whilst action No. S.C. 824 of 1984 was concerned with Block 8, Section 21.

3. On 31 May 1985 orders were made by consent. Although individual orders were made in respect of each block, it is convenient for my purposes to treat the relevant parts of those orders as though they were consolidated to read as follows:-

"That Gregory's (Properties) Pty Limited

being the lessee of Blocks 8 and 9, Section
21. Braddon in the Australian Capital
Territory be directed not to use the said
land or to permit the said land to be used
after 1 September 1985:

(i) for the parking of motor vehicles in the
course of the conduct of motor vehicle
dealers business known as Gregory's
(Motors) Pty. Limited on Blocks 15 and
16 Section 21 Braddon in the Australian
Capital Territory;

(ii) for affording vehicles access to Blocks
15 and 16 Section 21 Braddon."

4. Blocks 8 and 9 have a frontage to Torrens Street in Braddon and share, although not completely or symmetrically, common rear boundaries with Blocks 15 and 16 which have frontages to Lonsdale Street. At all material times Gregory's (Motors) Pty Limited (Gregory's Motors) has carried on business as a motor dealer on Blocks 15 and 16.

5. I accept that service of the orders made on 31 May 1985 was effected on 8 October 1985.

6. Anthony Francis Campbell, a project officer in the Residential Lease Management Branch of the Department of Territories, gave evidence that on 10 July 1986 he went to the area of 29 and 31 Torrens Street, Braddon at about 7 a.m. with Mr John Paull. 29 Torrens Street is Block 9 and 31 Torrens Street is Block 8 of Section 21 Braddon. As he walked past Block 8, he saw that a part of the rear fence adjacent to a structure on Block 8 which he called a shed had been removed. The part of the fence which had been removed had been placed against the shed. The evidence of Mr Calder established to my satisfaction that it was he who had removed that part of the rear fence, apparently a panel, so that he might clean out some blackberries growing on either side of the fence and some rubbish which had accumulated near it. The panel was removed for a few days only. I am satisfied that Mr Calder removed it in his own time, not to facilitate access from either of Blocks 8 and 9 to Blocks 15 and 16 but because he wanted to tidy up the backyard of 31 Torrens Street.

7. Mr Campbell also saw at the rear fence of Block 9 what appears from a photograph tendered to have been a 44 gallon drum.

8. Mr Campbell deposed further that at 8.06 a.m. he saw a Ford sedan, registration number YFI-910, being driven into Block 9 and parked at the rear of the house on that block. Three minutes later he saw a green Ford Falcon, registration number YIK-566, being driven into Block 8 and parked in the driveway. The driver, a man, walked to the rear of the block and entered Blocks 15 and 16 through the opening in the rear fence of Block 8. A minute later he saw a Ford Falcon, registration number NVV-315 (N.S.W.), being driven into Block 9 and stop. After the driver parked the car in the rear yard he walked to the rear fence and climbed into Blocks 15 and 16, apparently using the drum as a kind of stile.

9. At 8.14 a.m. he saw what he described as "a brand new Ford Telstar without front or rear number plates" being driven out of Block 9 and turn left into Torrens Street. At 8.23 a.m. what appeared to be the same car returned to Torrens Street and was driven into Block 9. He deposed that Gregory's Motors advertises extensively that it sells new Ford cars, including Ford Telstars. At 8.20 a.m. a car, registration number YND-120, was driven into Block 9 and parked in the rear yard. The driver walked to the rear fence and climbed into Gregory's Motors.

10. On 24 July 1986 Mr Campbell went to the same area at about 7.50 a.m. with Mr David Ahrens. The drum at the back fence of Block 9 was still there. At 8.07 a.m. a green Falcon, registration number YIK-566, was parked in the driveway of Block 8. The driver of the car walked through a gate on the side boundary between Blocks 8 and 9 and climbed the rear fence into Blocks 15 and 16.

11. At 8.13 a.m. a Ford sedan, registration number YFI-910, stopped on Torrens Street in front of Block 9. A man wearing blue overalls was seen to alight from the passenger's side, walk to the rear of Block 9 and climb the fence into Gregory's Motors. That car was driven by a friend of Gordon Hooson who was, I am satisfied, the tenant from the respondent of 29 Torrens Street. The applicant eventually conceded the irrelevance of this observation since his counsel conceded that the tenancy was a genuine one and, as I understood him, that there was a genuine explanation for Mr Hooson's apparent absence overnight from the block.

12. On 29 July 1986 (the affidavit shows the date as 9 July 1986 but it is agreed that this was an error) Mr Campbell went to the same area at about 8 a.m., again with Mr Ahrens. The drum was still in place. Mr Campbell deposed that at 8.10 a.m. a Ford sedan, registration number YQZ-877, parked in the driveway of Block 8. I assume that he meant that it was driven there. Two minutes later a blue Renault, registration number YOF-351, was driven into Block 9 and parked in the rear yard. The driver, who was wearing blue overalls, got out of the car and climbed the rear fence into Blocks 15 and 16. Mr Campbell left the area at about 8.25 a.m.

13. On 1 August 1986, again with Mr Ahrens, he went to the same area at about 7.55 a.m. The drum was still in the same position. At 8.08 a.m. a Ford sedan, registration number YFI-910, was driven into Block 9 and parked in the rear yard. The driver climbed over the rear fence into Blocks 15 and 16. At 8.22 a.m. a green Falcon, registration number YIK-566, was driven into Block 8 and parked in the driveway. The driver walked to the rear yard of Block 8. Mr Campbell did not see where he went thereafter. At about 8.35 a.m. he left the area.

14. On 13 August 1986, again with Mr Ahrens, he went to the same area at about 7.55 a.m. At 8.10 a.m. he saw Ford sedan, registration number YQZ-877, driven into Block 8 and parked on the driveway. The driver walked to the rear yard of the block. Mr Campbell did not see where he went. At about 8.25 a.m. he left the area.

15. At 7.50 a.m. on 1 September 1986 Mr Ahrens and Mr Paull went to the same area. The drum was still located at the rear fence of Block 9. At about 8.15 a.m. Mr Aarons saw the Ford sedan, registration number YFI-910, driven into Block 9. The driver and his passenger, both wearing blue overalls, walked to the rear of Block 9 and climbed the fence into Gregory's Motors. At 8.20 a.m. Mr Ahrens saw a green Falcon, registration number YIK-566, driven into Block 8. The driver walked through the side gate into Block 9 and climbed over the fence into Blocks 15 and 16. He was carrying what appeared to be a lunch box.

16. On 1 September 1986 Mr Campbell and Mr Ahrens had a conversation with Messrs Max Wilson, David Perkins, and Robin Thomson. They were identified as the "three people who make up the General Manager's position". Mr Campbell asked the three, "Are you aware of the Court order which prohibits the use of Blocks 8 and 9, Section 21, Braddon for business or other unauthorised purposes which came into effect on the 1st September 1985?" Mr Thomson said "Yes". Mr Campbell asked what steps had been taken to ensure compliance with the Court order and Mr Thomson replied, "The only thing involved really is to ensure that staff don't use the premises". He pointed out that some staff were living there and that it was impossible to police it every day. "We try to ensure cars do not go in there." Mr Thomson then advised that there was a mechanic in residence in each of the premises who would use it for his own car and it was not unusual for a mechanic to conduct work on the side in the backyard to fix cars. He said that one of the mechanics had been fixing quite a few cars, checking and reconditioning them for Mr Chris Clearihan who used to work from the respondent's premises.

17. Mr Campbell told of observations showing that some people, possibly employees of Gregory's Motors, were parking their vehicles in the backyard and jumping the fence. Mr Thomson said he was not aware of that. Mr Campbell then mentioned the use of the 44 gallon drum to gain access to Blocks 15 and 16. Mr Thomson asked, "When was this?". Mr Campbell replied, "Over the last 4-5 weeks - a couple of times per week". Mr Thomson asked whether Mr Campbell had observed this and Mr Campbell said that he had, at least two or three times per week, in the inspections in which he had been involved over the previous few weeks.

18. Mr Ahrens then told the meeting of his observations that morning that single cars were driven onto each of the blocks and parked and that the drivers thereafter jumped the fence. Mr Thomson was asked about the apparently unregistered and new Ford Telstar car that had been observed being parked on Block 9. He knew nothing about it.

19. By 29 September 1986 four strands of barbed wire had been erected across the back fence of Blocks 8 and 9 and the drum had been removed.

20. On these facts it seemed to me that the applicant Minister had established a prima facie case that the respondent was permitting the parking of cars on Blocks 8 and 9 in the course of the conduct of the motor vehicle dealers business known as Gregory's (Motors) Pty. Limited and I so ruled. Thereupon the respondent elected to give evidence and a number of affidavits were read on its behalf. The deponents were cross-examined.

21. The precise allegation made against the respondent was that it permitted Blocks 8 and 9 of Section 21, Braddon in the Australian Capital Territory to be used after 1 September 1985 for the parking of motor vehicles in the course of the conduct of motor vehicle dealers business known as Gregory's (Motors) Pty Limited on Blocks 15 and 16, Section 21 Braddon in the Australian Capital Territory in that the following employees parked their vehicles on either of Blocks 8 or 9, Section 21, Braddon for the purposes of attending their place of employment at Gregory's (Motors) Pty. Limited on Blocks 15 and 16, Section 21, Braddon -

(a) Bruce Carswell on 10 July 1986, 24 July 1986, 29
July 1986, 1 August 1986, 13 August 1986, and 1
September 1986

(b) Phil Henderson on 10 July 1986

(c) A man whose forename was "Brad" on 10 July 1986

(d) The driver of vehicle registration Number YOF-351
on 29 July 1986.

22. Mr Gregory Cusack, Managing Director of both companies concerned, gave evidence that, following an interview with Mr Blom on 9 October 1985, he gave instructions to his executives including Mr Wilson and Mr Thomson that they were to inform the staff that no cars associated with Gregory's Motors were to be parked on Blocks 8 and 9 and the staff were not to park there. In the months following that conversation he looked from time to time at Blocks 8 and 9 and at no time saw there any cars belonging to Gregory's Motors. On occasion he saw odd cars, some up on blocks or with their wheels off, clearly being worked on. He knew that the premises were occupied by a mechanic, Mr Hooson, as tenant, and believed those vehicles to be his. He gave details of the tenancy. He said that between 9 October 1985 and 1 September 1986 he received no complaints concerning possible breaches of the order of 31 May 1985.

23. In cross examination he said that he was not aware of the presence of the drum or that a section of fence had been removed. He had no knowledge of people jumping fences. He relied on Messrs Wilson and Thomson to police instructions given.

24. Gordon Hooson, the tenant of 29 Torrens Street, Braddon under an oral agreement with the respondent, deposed that he was the owner of Ford sedan registration number YFI-910. He gave a credible explanation for his apparent absences overnight. He said that he used climb the back fence of his house in his blue overalls to go to work but because of the erection of the barbed wire fence he is no longer able to do so. He said that the owner of car registration number NVV-315 (N.S.W.), subsequently identified as Mr Phil Henderson, was a friend of his, a mechanic employed by Gregory's Motors. After the staff at Gregory's Motors had been told that cars from Gregory's Motors were not to be parked in either Block 8 or Block 9 and the mechanics were not to park there he did not give permission to Mr Henderson to continue to park in his backyard. On one occasion (which must have been 10 July 1986) Mr Henderson told him one morning at work that he had parked his car in the backyard because he was running late and could not find a parking spot. Mr Hooson ratified Mr Henderson's action on that occasion but that was all. He did not know who was the owner of the vehicle, registration number YND-120, and had no recollection of ever seeing it in his yard or elsewhere. He had no recollection of ever seeing a Renault vehicle, registration number YOF-351, in his yard or elsewhere. He had no knowledge that a blue Renault had been parked there. He thought it possible that the two cars just referred to may have been cars upon which he was working as a mechanic on his own account but he could not remember whether or not that was so. He identified the allegedly brand new Ford Telstar seen leaving his yard on 10 July 1986 as a car which was not in fact brand new and which was owned by Mr Christopher Clearihan, a licensed motor dealer. He had done some repair work on the car and he may have taken the car for a test run. From time to time he had worked on a number of cars for Mr Clearihan and, taking the view that his arrangements with Mr Clearihan had nothing to do with Gregory's Motors, he did not seek that company's permission for his dealings with him. On occasion, he said, people for whom he was repairing cars would drop their cars outside Gregory's Motors in Lonsdale Street. He would drive them around to his house, park them there and climb over the back fence into Gregory's Motors premises.

25. In cross-examination he said that he thought there might have been one occasion when a man called "Brad" parked his car in his yard.

26. Mr Robin Thomson, a general manager (one of the three) of Gregory's Motors, gave evidence of the receipt of the instruction from Mr Cusack referred to above and that he had passed these instructions on, taking measures to ensure that they were complied with. So far as he was aware, at no time after a date long before the dates of the events complained of were vehicles parked on Blocks 8 or 9 in the course of the conduct of the business of Gregory's Motors. He would almost certainly have known, he said, if Gregory's Motors was using Blocks 8 and 9 in the course of business.

27. The mechanics ceased to park on Blocks 8 and 9 and for a week or so after their ceasing he checked to ensure that they were not parking. He reaffirmed what he had said in the interview with Mr Campbell on 1 September 1986 and in particular stated that he had no knowledge of people parking their vehicles on Blocks 8 and 9 and then climbing the fence into the premises of Gregory's Motors nor did he have any knowledge of the 44 gallon drum or that part of the fence at the back of Block 8 was removable. I am, incidentally, satisfied from the evidence of Mr Calder that a panel of that fence was removable because fixed by plates only to its adjacent upright.

28. Mr Thomson eventually satisfied himself that the Ford Telstar referred to above was not associated with Gregory's Motors. He took immediate action following the conversation of 1 September 1986 to have the fences between Blocks 8 and 9 raised to a height of two metres and, where necessary, repaired.

29. Mr Wilson gave evidence generally to much the same effect. He had in fact noted the Telstar on Block 9 and made enquiries as to its ownership. He told Mr Clearihan to take the vehicle away lest it might be thought that Gregory's Motors was in breach of the order of 31 May 1985.

30. I am, as a result of the cross-examination of Messrs Cusack, Thomson and Wilson, satisfied that the precautions they took regarding the continued use of the two blocks were not enough, had that use been a breach of the order of 31 May 1985, to excuse it.

31. Mr Denis Calder deposed that he was the tenant from the respondent of 31 Torrens Street Braddon of which he had taken possession in January 1986 when he first obtained a job with Gregory's Motors. On starting he had received no instructions from management that cars associated with Gregory's Motors business could not be parked in his yard but he heard from friends that management did not want the staff parking their cars there. From time to time he worked on cars in his yard but that was on his own account and had nothing to do with Gregory's Motors. He thought that a green Falcon, registration number YIK-566, seen parked on his driveway or in his yard belonged to a friend who worked in the spare parts division of Gregory's Motors. He did not recall a Ford sedan, registered number YQZ-877, but thought it might have been a car upon which he was working. From time to time, he said, one of his mechanic friends would park his car in his yard when unable to find parking further up Torrens Street and tell him later what had been done. His friends knew that he did not mind if they did this. He said that at most such parking would involve one or two cars and had occurred at most once or twice a week. He knew that the management of Gregory's Motors did not want staff cars parked in his yard but he felt that what he was doing involved no harm and that he was simply helping out a friend.

32. I think there was some confusion as to the registration numbers said to have been sighted by the Departmental officers and that the cars said to bear registration numbers YIK-566 and YQZ-877 bore numbers YRK-566 and YQJ-877 and were owned by Bruce Carswell. Mr Carswell, as I am satisfied, parked his car in Mr Calder's driveway fairly frequently and went off to work in Gregory's Motors.

33. Finally, Mr David Harrison, of 32 Torrens Street, Braddon, gave evidence that he lived opposite the two houses on Blocks 8 and 9 and that in 1986 he regularly took a shortcut through Block 9. He gained access to Gregory's Motors premises by climbing through a gap in the fence which allowed access into those premises and went thence to Lonsdale Street. When the missing palings were replaced he used a 44 gallon drum next to the fence to climb over it. He used wear blue overalls. He had no permission to take the shortcut. The erection of the barbed wire fence put an end to his use of the short cut which to that point he had used two, three or four times a week without permission and without even having been spoken to about it.

34. It is clear from the evidence, much of which I have set out above, that there were many occasions when cars other than those belonging to the tenants of Blocks 8 and 9 were parked on those blocks. Generally, those cars were left there by employees of Gregory's Motors while they attended their place of employment at Blocks 15 and 16. Had the order required the respondent to ensure that no cars belonging to the employees of Gregory's Motors or in the custody or care of their employees from time to time were parked on Blocks 8 and 9, Section 21, I would be satisfied on all the evidence that it had failed to comply with the order of 31 May 1985.

35. However, the order required the respondent, as lessee of Blocks 8 and 9, Section 21, Braddon, not to use the land or to permit it to be used for the parking of motor vehicles in the course of the conduct of the motor vehicle dealer's business known as Gregory's (Motors) Pty. Limited on Blocks 15 and 16, Section 21. In the light of the evidence given, it seems fair to say that Mr Cusack and the executives of Gregory's Motors considered themselves bound by the order of 31 May 1985 to ensure that none of the employees of Gregory's Motors parked their cars on Blocks 8 and 9. But, in my opinion, such a requirement would have gone far beyond the wording actually used in the order. There was no evidence that either of Blocks 8 or 9 were used for affording vehicles access to Blocks 15 and 16. There was no evidence, in my opinion, that the parking of the motor vehicles on Blocks 8 and 9 took place in the course of the conduct of the motor vehicle dealer's business known as Gregory's Motors. In fact all the evidence shows is that employees of Gregory's Motors used Blocks 8 and 9 from time to time to park their cars while they were at work. There is no acceptable suggestion in the evidence that such conduct on their part was as a result of a condition of their employment. It seems to me that, in the absence of such a relationship with their employment, it cannot be said that the use complained of was in contravention of the order of 31 May 1985. Had Gregory's Motors employees parked their cars at the kerbside of the street immediately in front of Blocks 15 and 16, Section 21, they could not have been said to be using that kerbside for the parking of motor vehicles in the course of the conduct of their employer's business. No more can it be said, in my opinion, that the use they made of Blocks 8 and 9 was in the course of the conduct of that business.

36. Each of the applications made by notices of motion dated 2 October 1986 is dismissed. The applicant Minister is to pay the respondent's costs of and incidental to each notice of motion.