> Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Panther Resources Pty Ltd and Another [2003] NSWLEC 216 APPLICANT Environment Protection Authority PARTIES : FIRST RESPONDENT Panther Resources Pty Ltd SECOND RESPONDENT Andrew Thaler FILE NUMBER(S) : (4)0261 of 2002 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- litigant in person facing custodial sentence - assistance from counsel acting pro bono LEGISLATION CITED: CASES CITED: Dietrich v The Queen (1992) 177 CLR 292 DATES OF HEARING: 09/09/2003 EX TEMPORE JUDGMENT DATE : 09/09/2003 APPLICANT Ms J M Jagot (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: RESPONDENTS Mr P J McEwen SC SOLICITORS NA JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (4)0261 of 2002 Talbot J 9 September 2003 Environment Protection Authority Applicant v Panther Resources Pty Ltd First Respondent Andrew Thaler Second Respondent Judgment Introduction 1 HIS HONOUR: The Court appreciates that Mr McEwen SC has made himself available at the Courts request on short notice on a pro bono basis to assist the defendant, who is otherwise unrepresented, in a matter where the applicant is seeking orders in respect of an alleged contempt of court with the prospect of making submissions that a custodial sentence should be imposed upon the second respondent, Andrew Thaler. 2 I am advised by Mr McEwen from the bar table that there has been an approach made to the Legal Aid Commission and that it may well be that there has been a misunderstanding as to the serious nature of the particular proceedings given the response that was reported to Mr McEwen, namely that the Legal Aid Commission does not, as a matter of policy, provide legal aid in environmental matters. The fact is although this may be an environmental matter nevertheless it is a quasi-criminal matter which can have serious consequences for Mr Thaler. 3 I am also aware of the fact that Mr Thaler has entered a plea of not guilty initially on the instruction of Cowdroy J on the last occasion but nevertheless has maintained it today with an intention to in fact put himself in a position to best challenge the orders that were originally made by Cowdroy J in some way and secondly, to afford him the fullest opportunity to give an explanation as to why the orders may not have been complied with. 4 As Mr McEwen put it, ultimately the intention of the second respondent may be satisfied by a plea of guilty with an explanation. The prospect of serious consequences remains, irrespective of whether the applicant seeks to persuade the Court to impose a custodial sentence. Nevertheless, that remains an option that is open to the Court and the matter needs to be considered in that light. 5 The High Court considered the circumstances of an unrepresented litigant in Dietrich v The Queen (1992) 177 CLR 292 and the aspect of whether or not this respondent should be allowed to, or be put in a position of having to continue to defend himself in the circumstances or whether a stay should be granted will need to be investigated in the light of the outcome of the process which I propose now to put in train. 6 Mr Thaler has indicated through Mr McEwen that he is prepared to take the opportunity to make a further approach to the Legal Aid Commission. On that basis, I propose to make orders and directions requiring him to pursue that course. Furthermore, he is to provide such information as may be reasonably necessary to support the application. He will be required to indicate to the applicant in writing within seven days of being notified of an outcome of his application. There will be liberty to restore on three days notice if that outcome is such that it is prudent to bring the matter back before 4 November 2003 which is the date I will set, in any event, for the matter to be listed for mention and directions. 7 In the meantime, I note that Mr McEwen has indicated that he proposes to give certain advice to Mr Thaler about a backup situation and the availability of counsel who may be prepared to assist Mr Thaler in the further conduct of these proceedings in the event that the legal aid is not forthcoming, for whatever reason. 8 I further note that Mr McEwen, and again the Court is grateful for his assistance in this regard, proposes to set out in a letter to the Legal Aid Commission the circumstances under which Mr Thaler is appearing before this Court and the prospects of what the outcome might be. 9 The Court makes the following formal orders:- (1) The second respondent, Andrew Thaler, is directed to make an application for legal aid to the Legal Aid Commission within seven days. (2) The second respondent, Andrew Thaler, is directed to provide such information as may reasonably be required by the Legal Aid Commission in support of his application and to respond diligently to any request by the Legal Aid Commission for additional material. (3) I direct that in the event that Andrew Thaler obtains a final determination from the Legal Aid Commission that he report the outcome to the applicant in writing within seven days of the receipt of the advice from the Legal Aid Commission. (4) Either party has liberty to restore on three days notice. (5) The matter is stood over for mention and directions at 9:15am on 4 November 2003. (6) Costs of today are reserved. (7) Exhibit 1 in the proceedings before Cowdroy J, which was handed up for my information, is returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.