Wingecarribee Shire Council v O'Shanassy [2013] NSWLEC 201

Land and Environment Court New South Wales

Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy [2013] NSWLEC 201 Hearing dates: 14 November 2013 Decision date: 14 November 2013 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [37]. Catchwords: PRACTICE AND PROCEDURE: case management of, and prosecution and defence disclosures in, criminal prosecutions - prosecutor sought to file further affidavits in chief - applicable factors in granting leave - leave granted. Legislation Cited: Criminal Procedure Act 1986, Pt 5 Div 2A, ss 247E, 247F, 247J, 247K

Environmental Planning and Assessment Act 1979, ss 76A(1)(a), 125(1) Cases Cited: Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 47

Environment Protection Authority v Gilmour [2000] NSWLEC 144; (2000) 109 LGERA 228

Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Category: Procedural and other rulings Parties: Wingecarribee Shire Council (Prosecutor) Paul Gerard O'Shanassy (Defendant) Representation: Mr T Howard SC (Prosecutor) Mr R O'Gorman-Hughes (Defendant) Shaw Reynolds Lawyers (Prosecutor) Agility Legal Pty Ltd (Defendant) File Number(s): 51130 of 2012

Judgment

The Council Seeks Leave to Adduce Further Evidence in Chief 1By notice of motion filed 8 November 2013, the prosecutor, Wingecarribee Shire Council ("the council"), sought leave to supplement its notice of prosecution case pursuant to s 247E of the Criminal Procedure Act 1986, by adding to the list of affidavits to be relied upon by it. Those affidavits are as follows: (a)an affidavit of Mr William Symons affirmed on 4 September 2013; (b)an affidavit of Mr Joe Lorincz affirmed on 13 September 2013; and (c)an affidavit of Mr Shannon Webb affirmed on 25 September 2013. 2The application was opposed by the defendant, Mr Paul O'Shanassy. 3The trial date for the hearing of the summons has not yet been set. 4At the conclusion of the hearing of the application, after having considered the evidence and submissions presented by both the council and Mr O'Shanassy, the Court granted leave to the council and stated that it would publish its reasons at a later date. These are those reasons. 5By summons filed 9 November 2012, Mr O'Shanassy is charged with committing an offence pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") in that, in contravention of s 76A(1)(a) of the EPAA, Mr O'Shanassy carried out development on land to which an environmental instrument applied, being development that could not be carried out except with development consent and in circumstances where no such consent had been obtained. 6The development comprised earthworks, namely, the excavation and filling of rock having a volume estimated to exceed 16,000m³ by the use of heavy machinery, together with associated works including the removal of trees and vegetation. The development is alleged to have been carried out by civil works and excavation contractors that were retained and instructed by Mr O'Shanassy. 7Each of Messrs Symons, Lorincz and Webb have affirmed earlier affidavits in the proceedings, which were previously filed on behalf of the council. 8As can be seen from the procedural history described below, there has been to date protracted preparation of the matter. In large part this has been due to the dilatory conduct of Mr O'Shanassy. 9On 14 December 2012 the proceedings were stood over at Mr O'Shanassy's request to 1 February 2013. On 1 February 2013 Mr O'Shanassy requested that the matter be stood over for a further three weeks in order for him to review documents produced pursuant to a notice to produce and for family reasons. 10On 22 February 2013, the next occasion the matter was before the Court, no plea was entered by Mr O'Shanassy and a timetable was set for the filing of the council's s 247E notice, Mr O'Shanassy's s 247F notice, the council's s 247J notice and Mr O'Shanassy's s 247K notice. Give or take a few days, with the exception of Mr O'Shanassy's s 247K notice, all the other notices were filed by the time stipulated by the Court. 11On 17 May 2013 again no plea was entered by Mr O'Shanassy. Furthermore, Mr O'Shanassy sought an additional six weeks to serve his s 247K defence notice as a result of his involvement in litigation in the Family Court. The council objected to the extension and the Court stood the matter over for the entry of a plea and further directions on 31 May 2013. 12On that date, Mr O'Shanassy entered a not guilty plea and sought an additional four weeks to serve his s 247K notice. This was opposed by the council. The council instead sought service of the notice by Mr O'Shanassy and the listing of the matter for a preliminary hearing. The Court acceded to Mr O'Shanassy's request, ordered him to file and serve his s 247K notice by 28 June 2013 and fixed a preliminary hearing for 5 July 2013. But in doing so, the Court stated that no further concessions would be granted to Mr O'Shanassy in respect of the notice. 13Throughout June and July 2013 various subpoenas were served on the council by Mr O'Shanassy and documents were produced in respect of those subpoenas. 14On 5 July 2013 Mr O'Shanassy finally served his s 247K notice, but absent from the notice was an expert report as required by s 247K(f). Mr O'Shanassy was ordered by the Court on that date to file and serve the missing expert report by 31 July 2013. 15By 2 August 2013 Mr O'Shanassy's expert report still had not been filed and served. The Court directed Mr O'Shanassy on that date to file and serve his expert report by 23 August 2013. Meanwhile, Mr O'Shanassy had changed his legal representatives. 16During the course of the remainder of August further subpoenas were issued by Mr O'Shanassy. 17On 30 August 2013 Mr O'Shanassy was again ordered to file and serve his expert evidence with another extension to do so by 20 September 2013. 18As at 27 September 2013, when the matter was next listed for directions, Mr O'Shanassy's expert evidence had still not been finalised. A further extension was given by the Court to 25 October 2013. This order was complied with by Mr O'Shanassy on 31 October 2013. 19Meanwhile, on 16 September 2013 the council filed and served the affidavits of Mr Symons, affirmed 4 September 2013 and Mr Lorincz, affirmed 13 September 2013. 20Then on 2 October 2013 the council filed and served the affidavit of Mr Shannon Webb, affirmed 25 September 2013. 21In support of its application for leave the council relied upon an affidavit of Mr Colin McFadzean affirmed 8 November 2013. Mr McFadzean is a solicitor employed by the legal representatives for the council. Attached to Mr McFadzean's affidavit was the notice of the prosecution case in conformity with s 247E, provided to Mr O'Shanassy on 25 March 2013; the notice of the defence response provided to the council by Mr O'Shanassy pursuant to s 247F, provided on 12 April 2013; the prosecution notice filed pursuant to s 247J, provided on 26 April 2013; and the notice of the defence response filed pursuant to s 247K, provided on 5 July 2013. The s 247E notice provided by the council included at section (d) item (21) a "memorandum of Shannon Webb dated 17 October 2011 including photographs taken on 6 October 2011". The relevance of this disclosure is discussed further below. 22In opposition, Mr O'Shanassy relied upon an affidavit of Ms Catherine Mooshi sworn on 14 November 2013, a solicitor employed by legal representatives engaged on his behalf. In addition to setting out some of the procedural history referred to above, Ms Mooshi stated that the affidavits the subject of the notice of motion, together with exhibits and annexures, totalled approximately 325 pages which was a 50% increase in the council's evidence. Moreover, in her opinion, the content of the affidavits neither merely responded to objections made by Mr O'Shanassy nor corrected mistaken assertions in the earlier affidavits. 23Ms Mooshi sought to provide details in her affidavit of the legal costs incurred to date in defending these proceedings, however, this material was rejected by the Court on the basis that in the form presented it amounted to no more than an unverifiable assertion that could not, as a matter of fairness to the council, be tested in any way. However, it may be taken as a matter of judicial notice that given the procedural history of the preparation of the matter to date, substantial costs have already been incurred by Mr O'Shanassy. As a matter of logic it follows that if any further affidavit evidence is to be relied upon by the council it is likely that these legal costs will increase. 24The council also put before the Court the principal affidavits of Messrs Symons, Lorincz and Webb referred to above in order to properly assess the content of the supplementary affidavits it was seeking to rely upon.