Ku-ring-gai Council v Abroon [2011] NSWLEC 1

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Abroon [2011] NSWLEC 1 Hearing dates: 21 January 2011 Decision date: 21 January 2011 Before: Pepper J Decision: Application to adduce further evidence in chief refused Catchwords: Practice and Procedure:- application to adduce oral evidence in chief to supplement affidavit - evidence would prejudice prosecutor who could not properly meet it - application refused Legislation Cited: Civil Procedure Act 2005 ss 4, 56 Fines Act 1996 s 6 Category: Interlocutory applications Parties: Ku-ring-gai Council (Prosecutor) Mr Abbas Abroon (Defendant) Representation: Counsel: Mr T Howard (Prosecutor) Ms H Irish (Defendant) Solicitors: HWL Ebsworth (Prosecutor) N/A (Defendant) File Number(s): 50078 and 50079 of 2009

EX TEMPORE Judgment

Introduction 1HER HONOUR : Before me is an oral application by the defendant, Mr Abbas Abroon, to adduce further oral evidence-in-chief to the effect that he is cash poor, asset rich. The application has arisen in the course of Mr Abroon's sentence hearing. 2The evidence is necessary, Mr Abroon submits, because Mr Abroon's capacity to pay any monetary penalty the Court may impose consequent upon his guilty plea is a relevant consideration that the Court must have regard to in determining appropriate sentence pursuant to s 6 of the Fines Act 1996. 3The information is evidence which should have, but was not, adduced by him in his affidavit filed on 3 September 2010, pursuant to directions of the Court. This type of evidence is found in affidavits routinely filed in sentencing matters in this Court. No explanation had been given by him for the omission or why this evidence was not, prior to today, sought to be adduced. 4The application is made on day four of the hearing, which was originally set down for two days in December 2010. It was not until the day that it was made that the prosecuting council was notified of the foreshadowed application.