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. 3. The application for adjournment is not opposed by the Prosecutor. If the matter is to be defended the Defendant ought to have a proper opportunity to be legally represented at the trial. The application however, for adjournment has given rise to a not unexpected claim for costs by the Prosecutor, for costs thrown away. The Defendant through his solicitor has nothing to say in opposition to such an order and it may be expected that an order for costs thrown away would normally be made in these circumstances. However as Counsel for the Prosecutor has pointed out there is a question as to whether the Court's powers in relation to costs in criminal proceedings in the Court is wholly founded in the provisions of section 52 of the Land and Environment Court Act 1979 and that matter requires some further consideration. 4. There may have been criminal cases where the Court has made a costs order relying upon the Court Act, s 69. But there are difficulties with that approach, notably the express provisions of the Land and Environment Court Act, s 69(9) which state "This section does not apply to proceedings in class 5, 6 or 7." 5. I think in the circumstances, therefore that I should formally reserve that costs question, giving the Prosecutor the opportunity in the fullness of time to make any further submissions in support of the application which in my judgment most probably should be dealt with at, and in consequence of the result, of the trial. 6. Accordingly, for all the foregoing reasons I vacate the hearing dates for the hearing of this defended charge and give the parties liberty to approach the Registrar to obtain a future fixture for the hearing of the case. I formally reserve the application made by the Prosecutor for costs thrown away by dint of the adjournment to which the Defendant has offered no opposition. However, for the reasons given, that matter is reserved until the result at the trial with liberty to apply on three days' notice. 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.