Port Macquarie-Hastings Council v Notley [2013] NSWLEC 193

Land and Environment Court New South Wales

Medium Neutral Citation: Port Macquarie-Hastings Council v Notley [2013] NSWLEC 193 Hearing dates: 11 November 2013 Decision date: 11 November 2013 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [16]. Catchwords: PROCEDURE: application to vacate hearing date - foreshadowed application by defendant to change plea of guilty to not guilty - hearing date vacated - defendant to pay prosecutor's costs thrown away. Cases Cited: Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207 Category: Procedural and other rulings Parties: Port Macquarie-Hastings Council (Prosecutor) Mr Benjamin Lloyd Notley (Defendant) Representation: Mr M Bonanno (Solicitor) (Prosecutor) Mr B Notley (in person) (Defendant) Lindsay Taylor Lawyers (Prosecutor) N/A (Defendant) File Number(s): 50152 of 2013

EX TEMPORE Judgment

Mr Notley Foreshadows a Late Intention to Change his Plea 1The summons charging the defendant in these proceedings, Mr Benjamin Notley, with having carried out development absent the necessary development consent by the erection of a dwelling house or part thereof on land owned by him, was filed on 4 March 2013 by the prosecutor, Port Macquarie-Hastings Council ("the council"). 2Since that time Mr Notley has appeared on no less than six occasions before the Court. A plea of guilty was entered by him in respect of the charge on the fifth appearance on 11 October 2013. On that day the proceedings were also listed for a sentence hearing. 3The matter before the Court today is that sentence hearing. 4In entering his plea of guilty on 11 October 2013, Mr Notley handed to the Court a two page handwritten submission signed by him and stating that it was only a week prior to that date that he properly understood that, contrary to his earlier belief, the council had a statutory right to prosecute him for his construction of the "temporary shack" built by him. Thus, Mr Notley pleaded guilty and requested time to file submissions in mitigation explaining the circumstances surrounding the commission of the offence and the subsequent removal by him of the temporary dwelling. 5Prior to Mr Notley entering his plea of guilty on 11 October 2013, on 3 October 2013 Mr Brien Cornwell had sent an email to Mr Mark Bonanno, the solicitor acting for the council, in the following terms: Dear Mark, After long discussions with Ben and explaining at great length the provisions and legislative rights of both the Commonwealth and the State of New South Wales he has realised the futility of his previously held beliefs. As a result of these discussions he now accepts the status of the Council and the valid legislation that the Council gains its status and powers. As such, I am of the belief that the time table for providing a defence to the action is not required to be served on you tomorrow. Accordingly, on the 18th October Ben will be pleading his breach of the provisions of the Act and will submit in writing to the Court a plea in mitigation. I will assist Ben in drafting these submissions as well as providing a statement from myself to the Court in relation to the circumstances behind Bens previously held belief in his Constitutional rights. Regards, Brien 6Mr Cornwell is, according to Mr Notley, purportedly assisting Mr Notley in these proceedings. Mr Notley describes Mr Cornwell as a "McKenzie friend". 7Subsequently, Mr Notley proceeded to file affidavit material and written submissions consistent with his plea of guilty. The prosecutor responded in kind. 8However, on Sunday, 10 November 2013 at 7.49pm, that is to say, the evening before the sentence hearing was due to commence, Mr Cornwell sent this email to Mr Bonanno: Dear Mark, After a thorough examination of all the exhibits provided by Craig Henderson and filed in the Court I will be handing up submissions for the matter to be No Billed. In the alternative, Ben will enter a formal Not Guilty plea on the basis of his mistaken but honest belief in his Constitutional rights. I have looked at all the evidence filed and I have always been troubled by the lack of mens rea. I will be seeking an adjournment of four weeks to have all relevant evidence, filed and served. As this is being prosecuted as a criminal matter, it is incumbent on both the prosecution and the defendant to have on record all evidence that is relevant to the case. I have consulted Professor Ray Watterson who is currently an Adjunct Professor of Law at La Trobe University. Professor Watterson was the person responsible for setting up the Newcastle Legal Resources Centre at the Newcastle University Law School and is arranging for the Centre to assist and represent Mr Notley should the No Bill application fail. I apologise for the short notice. Kind regards, Brien 9Consistent with the terms of the email, when Mr Notley appeared before the Court today he advised it of his intention to change his plea of guilty to not guilty. It is Mr Notley's right to seek the Court's leave to change his plea. However, as the Court advised Mr Notley, the Court would require any application to change his plea in a proper form, namely, by way of notice of motion, together with supporting affidavit material. And importantly, the Court told Mr Notley that merely because he wanted to change his plea did not necessarily mean that the Court would allow him to do so. The Court therefore advised Mr Notley to obtain legal advice on this issue. 10Also consistent with Mr Notley's change in position was a document filed today entitled "Defendants [sic] Submissions on no bill application". The submissions are signed by Mr Cornwell in his capacity as "Agent for Benjamin Lloyd Notley". This is curious because there is presently no document on the Court file authorising Mr Cornwell to appear as Mr Notley's agent. The description of Mr Cornwell as Mr Notley's "agent" is, moreover, inconsistent with Mr Notley's description of Mr Cornwell as a "McKenzie friend". Accordingly, the status of Mr Cornwell is presently unknown to the Court. It appears, however, at least in so far as the emails referred to above demonstrate, that Mr Notley has authorised Mr Cornwell to liaise directly with the council with respect to his matter. 11Having read the content of the document referred to above, it is not clear how these "no bill" submissions aid Mr Notley and the Court is currently concerned that Mr Cornwell's assistance may in fact be a detriment to Mr Notley. If Mr Cornwell is appearing as Mr Notley's agent, the Court may in future need to consider whether any leave to do so ought to be revoked (see Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207 at [95]-[98]). 12The council expressly opposed the foreshadowed application. The Court indicated that the council's opposition, while understandable and no doubt born out of a legitimate sense of frustration, was somewhat premature given that the council had seen neither the application itself nor Mr Notley's supporting documentation. 13In all of the circumstances, the Court has no option but to vacate today's hearing date in order to permit Mr Notley to apply to the Court to change his plea. 14While the Court is mindful of the fact that Mr Notley is self represented, given the delay to date in finalising these proceedings, it is appropriate that a truncated timetable be set for Mr Notley to make his application.