Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52

Land and Environment Court New South Wales

Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52 Hearing dates: 9 May 2014 Decision date: 09 May 2014 Jurisdiction: Class 5 Before: Pepper J Decision: Hearing dates vacated. Catchwords: PROCEDURE: application to vacate hearing dates due to illness of witness - properly particularised medical certificate provided - application granted. Legislation Cited: Civil Procedure Act 2005, ss 56, 58 Cases Cited: Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Lane Cove Council v Ross (No 13) [2013] NSWLEC 80

Palerang Council v Banfield [2012] NSWLEC 85

Thaler v Cooma Monaro Shire council (No 2) [2014] NSWLEC 51

Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48 Category: Interlocutory applications Parties: Wingecarribee Shire Council (Prosecutor) Mr Paul O'Shanassy (Defendant) Representation: Mr T Howard SC (Prosecutor) Mr M Pesman SC (Defendant) Shaw Reynolds Bowen & Gerathy Pty Ltd (Prosecutor) Mr P O'Shanassy (In person) (Defendant) File Number(s): 51130 of 2012

EX TEMPORE Judgment

The Prosecutor Applies to Vacate Hearing Dates Due to the Illness of a Witness 1In Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48 the Court permitted the prosecutor, Wingecarribee Shire Council, to reopen its case to read the affidavit of Mr Jim Allman affirmed 14 April 2014. The significance of this was that, as that judgment disclosed, the photographs associated with that affidavit, if admitted into evidence and assuming the prosecutor is able to successfully demonstrate that they were taken on the dates alleged by Mr Allman in his affidavit, could have the capacity to seriously adversely impact Mr O'Shanassy's credit with respect to the central issue in the proceedings, namely, when the impugned earthworks the subject of the criminal proceedings took place. 2As a result of leave having been granted to the prosecutor to reopen its case Mr Allman was required for cross-examination. That questioning was to occur today. 3However, due to the sudden illness of Mr Allman, the prosecutor seeks to vacate today's hearing. Mr Paul O'Shanassy, the defendant, neither opposes nor consents to the application. 4In support of its application, the prosecutor relies on a medical certificate of Dr Stephen Barnett dated 8 May 2014. It is not necessary to provide the details of the contents of that medical certificate, suffice it to say that a fulsome description of Mr Allman's illness was given by Dr Barnett, which makes it tolerably clear that Mr Allman is not fit to attend Court today. Indeed, he currently requires hospitalisation. 5Unlike the medical certificates provided in Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 (at [4] and [9]-[10]), Palerang Council v Banfield [2012] NSWLEC 85 (at [10]-[12]) and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 (at [1]-[2]), the nature of the condition supporting the application is more than adequately stated in Dr Barnett's medical certificate, and moreover, that description leaves no doubt that Mr Allman will be unfit for Court not just today, but for the immediate future.