Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34 Hearing dates: 9 and 10 December 2020 Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [152]-[153] Catchwords: PRACTICE AND PROCEDURE - earlier charges (identical for each Defendant) found to be defective - Prosecutor provided with the opportunity to replead the charge - Prosecutor seeks to rely on an Amended Summons against each Defendant - Defendants oppose the proposed repleaded charge - several further iterations of a repleaded charge proposed by the Prosecutor (including during the hearing) - Prosecutor seeks and is granted leave during the course of the hearing to rely on a final version of a proposed Amended Summons - Defendants attack the final version of the proposed Amended Summons on a number of discrete bases - the first complaint was that the proposed Amended Summons seeks to plead a charge not known to the law - held that the proposed Amended Summons pleads a charge not known to the law - the second complaint was that the charge in the proposed Amended Summons is patently duplicitous - held that the charge in the proposed Amended Summons is patently duplicitous - the third complaint was that the charge in the proposed Amended Summons is latently duplicitous - held that the charge in the proposed Amended Summons is latently duplicitous - the fourth complaint was that the charge in the proposed Amended Summons is a fresh charge laid after the expiry of the relevant statutory limitation period - held that the charge in the proposed Amended Summons did constitute a fresh charge sought to be laid, impermissibly, after the expiry of the relevant statutory limitation period - the fifth complaint was that the charge in the proposed Amended Summons is impermissibly uncertain - held that the charge in the proposed Amended Summons is impermissibly uncertain - each of these five defects separately warrants refusal of leave being granted to the Prosecutor to rely upon the proposed Amended Summons - not appropriate to provide the Prosecutor with any further opportunity to seek to replead - proceedings to be dismissed - costs reserved. Legislation Cited: Criminal Procedure Act 1986, s 21 Environmental Planning and Assessment Act 1979, ss 76A(1) and 125(1) Land and Environment Court Act 1979, s 68 Cases Cited: Attorney General (NSW) v Built NSW Pty Ltd (2013) IR 102; [2013] NSWCCA 299 Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74 S v R (1989) 168 CLR 266; [1989] HCA 66 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Texts Cited: Managing Urban Stormwater: Soils and Construction, Landcom, 4th ed, March 2004 Category: Procedural rulings Parties: Matter No 87062 of 2019 Secretary, Department of Planning and Environment (Prosecutor) Goodman Property Services (Aust) Pty Ltd (Defendant)