Environment Protection Authority v Sydney Drum Machinery Pty Ltd [2014] NSWLEC 10

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sydney Drum Machinery Pty Ltd [2014] NSWLEC 10 Hearing dates: 7 February 2014 Decision date: 07 February 2014 Jurisdiction: Class 5 Before: Biscoe J Decision: (1) The trial dates commencing on 17 February 2014 are vacated. (2) The proceedings are fixed for trial for four days from 7-10 April 2014. (3) The proceedings will be listed for directions before the List Judge on 28 March 2014. Catchwords: Practice and Procedure - Vacation of trial dates in criminal proceedings where defendants are legally unrepresented due to impecuniosity Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Sydney Drum Machinery Pty Ltd (Defendant)

50010-50012 of 2013 Environment Protection Authority (Prosecutor) Imad Osman-Kerim (Defendant) Representation: COUNSEL: J Giles (Prosecutor) SOLICITORS: Environment Protection Authority (Prosecutor) N/A (Defendants) File Number(s): 50007/13, 5008/13, 50009/13, 50010,13, 50011/13, 50012/13

EX TEMPORE Judgment 1In these criminal proceedings against Mr Osman-Kerim and Sydney Drum Machinery Pty Ltd, of which he is a director and shareholder, Mr Osman-Kerim moves orally to vacate the trial dates of four days commencing on 17 February 2014 and to fix new trial dates in two month's time. The reason is that the defendants have run out of money to continue to pay their solicitor and barrister; consequently, they have ceased to act for the defendants. He tells me that the cause of the impecuniosity is that the company's factory burned down and the business that was conducted there had to close. He says that there are people who owe him money who will repay the money, hopefully soon; and he believes that two months will be a sufficient time to get in the money and retain the same solicitor and barrister to defend the company and him on the proposed later occasion. The defendants have not formally pleaded and the matter has been set down for trial on the basis that they plead not guilty. 2Whilst opposing vacation of the hearing dates, the prosecutor acknowledges that the defendants are entitled to a fair trial; that the defences that the former lawyers for the defendants have foreshadowed include matters of an administrative law nature challenging statutory notices that Mr Osman-Kerim could not reasonably be expected to conduct personally (he is not a lawyer and has no particular legal knowledge of the law); and that the defendants have no real prospect of being legally represented by the current trial dates. The prosecutor accepts that these considerations weigh heavily in favour of vacation of the trial dates. The prosecutor points out some countervailing considerations: the matter has had a relevantly long history during which the defendants' previous solicitor also ceased to act because of lack of funds; and the process of bringing the defendants to the point where the matter is ready for trial has been somewhat tortuous. 3The prosecutor arranged for the matter to be listed today in order to resolve uncertainty as to how matters might proceed, taking into account that the prosecutor has to arrange for the attendance of witnesses including at least one from overseas. 4Given the relatively long history of the proceedings, any further delay in bringing them to finality would be (to say the least) unfortunate. However, on this occasion, on balance, I consider that the considerations to which I have referred should incline the Court to vacate the trial dates and fix new trial dates in two months' time. 5Accordingly, the orders of the Court are as follows: (1)The trial dates commencing on 17 February 2014 are vacated. (2)The proceedings are fixed for trial for four days from 7-10 April 2014. (3)The proceedings will be listed for directions before the List Judge on 28 March 2014. 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. Decision last updated: 11 February 2014