Lane Cove Council v Moody [2002] NSWLEC 250

Land and Environment Court of New South Wales

CITATION : Lane Cove Council v Moody [2002] NSWLEC 250 PROSECUTOR: Lane Cove Council PARTIES : DEFENDANT: R. Moody FILE NUMBER(S) : 50051 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Vacation of hearing of trial-whether Court has power to order costs thrown away by vacation. LEGISLATION CITED: Land and Environment Court Act 1979, s 52 and s 69 CASES CITED: DATES OF HEARING: 16/12/2002 EX TEMPORE JUDGMENT DATE : 12/16/2002

PROSECUTOR: T G Howard, Barrister SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: DEFENDANT: C Thompson, Solicitor SOLICITORS Hunt and Hunt

JUDGMENT:

1. The Defendant has appeared today represented by Mr Thompson, Solicitor, who only was instructed to appear this morning and has not had an opportunity to consider the case and in those circumstances on behalf of the Defendant has asked for an adjournment. The matter was fixed for two days, today and tomorrow, on the basis that the case would be defended but it appears that the Defendant wishes the opportunity to call evidence not only from himself but from neighbours and a consultant arborist.

2. The charge alleges a breach of the relevant tree preservation order that applies in the Lane Cove municipality. The application for adjournment is made on the basis that it will not be possible for the Defendant to properly present his defence if the matter for example were only adjourned for today and resume tomorrow. In consequence, the whole fixture, that is the hearing for today and tomorrow, will not be capable of being utilised by the Defence in view of the position and circumstances in which the Defendant finds himself. The Defendant who has been continuously represented in the proceedings, after they were commenced in this Court in May of this year, during which period on 9 August of this year a plea of not guilty was entered, found himself in a situation a few days before the scheduled trial of no longer having the benefit of the services of the solicitor who had acted for him throughout the litigation history, when that solicitor just last week filed a notice of ceasing to act.