Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197 Hearing dates: 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Class 5 Before: Pepper J Decision: Leave granted to read the affidavit of Mr Andrew Macleod affirmed 22 November 2018. Catchwords: EVIDENCE: whether leave should be granted to the prosecutor to read an affidavit served late – no prejudice to the defendant – affidavit needed to avoid the prosecutor splitting its case – leave granted. Legislation Cited: Criminal Procedure Act 1986, ss 247P, 247V, 247X Evidence Act 1995, ss 55, 76, 79, 192 Cases Cited: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 Texts Cited: Category: Procedural and other rulings Parties: Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant) Representation: Counsel: T Howard SC and J Walker (Prosecutor) A Galasso SC and B Anniwell (Defendant) Solicitors: Department of Planning and Environment (Prosecutor) Mills Oakley (Defendant) File Number(s): 2017/186631, 2017/186632, 2017/186634 Publication restriction: N/A Judgment The Prosecutor Seeks Leave to Rely on a Late Affidavit 1. The prosecutor in Class 5 criminal proceedings, the Secretary, Department of Planning and Environment ("the Department"), seeks leave to read an affidavit of Mr Andrew Macleod affirmed 22 November 2018 ("the Macleod affidavit"). The defendant, Leda Manorstead Pty Ltd ("Leda") opposes the affidavit being read. 2. The hearing commenced on 26 November 2018, that is, four days after the service of the affidavit. In other words, the affidavit was served late on Leda. 3. The Macleod affidavit is in response to two affidavits sworn by Dr Daniel Martens on 22 June and 24 October 2018. Dr Martens is an environmental scientist and civil/environmental engineer, whose evidence is proffered on behalf of Leda. 4. Relevantly for present purposes, in his two affidavits Dr Martens opines as to the meaning of various terms within condition 21A(b) of a project approval, breaches of which form the basis of two of three criminal counts with which Leda has been charged and that are presently being heard by the Court 5. Condition 21A(b) of the project approval states as follows: 21A Bulk Earthworks … b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. 1. Dr Martens, drawing upon his considerable experience as a civil/environmental engineer, gives his expert opinion, first, on whether the composite term "exposed disturbed area" used in condition 21A has a particular meaning to a civil engineer, and if so, what that meaning is. Second, Dr Martens gives his opinion on the meaning of the term "bulk earthworks" contained in condition 41 of the project approval, alleged breach of which comprises the third charge against Leda, and condition 21A(b) of that approval. 2. Condition 41 of the project approval relevantly states: 41. Earthworks – Limits of Approval a. No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval) b. Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3. 1. Mr Macleod, an environmental scientist specialising in the field of erosion and sediment control and soil science, has had experience in the construction industry. In his affidavit, he deposes to the meaning of "bulk earthworks" and "exposed disturbed areas" and states that, in his opinion, and contrary to the evidence of Dr Martens, neither term has a particular specialised meaning in the construction industry. 2. A principal legal issue (if not the principal legal issue) for determination by the Court in the proceedings will be the proper construction of conditions 21A(b) and 41 of the project approval. 3. Leda submits that the terms "bulk earthworks" and "exposed disturbed area" are terms of art, and therefore, expert evidence is permissible, if not necessary, to construe them for the purpose of interpreting conditions 21A(b) and 41 of the project approval. 4. The Department, by contrast, in effect submits that the terms are to be construed in accordance with their ordinary everyday usage and that therefore the evidence of Dr Martens is irrelevant (and inadmissible) in this regard. It seeks to rely on Mr Macleod's evidence to indicate how those terms are used in the construction industry. Relevance of Mr Macleod's Affidavit 1. Section 55 of the Evidence Act 1995 provides as follows: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence 1. As a result of the way Leda puts its defence, as evident by the content of the two affidavits of Dr Martens, the Macleod evidence is plainly relevant. 2. While the Court may ultimately reject the construction arguments of Leda and determine that conditions 21A(b) and 44 are to be construed according to their ordinary language in accordance with orthodox principles of interpretation of development consents, without determining the issue to finality at this early stage of the proceedings, that is, absent detailed submissions of the parties and prior to the Department having closed its case, Mr Macleod's evidence is relevant to an issue in the proceedings for the purposes of s 55 of the Evidence Act cannot be denied. Prejudice to Leda 1. Although asserted in its submissions, Leda could point to no actual prejudice that it would suffer if the Macleod affidavit was permitted to be read by the Department. Given its confined and brief content, this is unsurprising. 2. But in any event, any inconvenience occasioned by the late service of Mr Macleod's affidavit can, in my view, be dealt with by providing Leda with an opportunity for Dr Martens and Mr Macleod to confer and/or for Leda to take instructions from Dr Martens prior to Mr Macleod being required (if he is) for cross-examination. If a short adjournment is required for this purpose, the three weeks allocated to hear the three charges will easily accommodate any such delay. The Late Service Was Contrary to Pt 5 Div 2A of the Criminal Procedure Act 1986 1. Leda objected to any reliance by the Department on the Macleod affidavit on the basis that, by reason of its extraordinary lateness, it was served in blatant contravention of Pt 5 Div 2A of the Criminal Procedure Act 1986 ("the CPA"). 2. In Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121, Biscoe J analysed Pt 5 Div 2A of the CPA (at [3]-[17]) and relevantly said as follows (at [27]-[28]): 27 In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd(1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations): Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps. Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant. 28 In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings. 1. A similar sentiment was expressed in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 when the Court said that (at [68]): 68. From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Div 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave application of casement principles, having regard to the efficient dispatch of Court business. On any view the Macleod affidavit has been served very late, especially given the fact that the first affidavit by Dr Martens (and the most relevant for the purposes of the present application) has been in the possession of the Department for almost five months. No explanation whatsoever was given by the Department for the delay, although it readily acknowledged its unsatisfactory behaviour in this instance. 1. However, the Court retains a discretion as to whether or not to admit the evidence, even if served contrary to the disclosure regime set out in Pt 5 Div 2A of the CPA (see ss 247P, 247V and 247X of the CPA). 2. I have also had regard to the factors contained in s 192 of the Evidence Act, which provide that: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, (b) the extent to which to do so would be unfair to a party and to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. In the present application, the admission of the affidavit into evidence will not unduly lengthen the hearing; is not demonstrably unfair to Leda, or Dr Martens (see the discussion above); is relevant to both parties; will result in unfairness to the Department if it is not permitted to rely upon it; and any prejudice can be ameliorated, if not wholly cured, by a short adjournment to allow Leda to take instructions as to the contents of the affidavit (again, see the discussion above). 2. For all these reasons the Macleod affidavit ought to be admitted into evidence. Mr Macleod is Qualified to Give the Evidence 1. The final reason Leda gave for the Court not receiving into evidence the Macleod affidavit was that it was opinion evidence under s 76 of the Evidence Act because the deponent lacked the necessary specialist expertise or knowledge required pursuant to s 79 of the Evidence Act. 2. The curriculum vitae of Mr Macleod described his expertise and experience as follows: Andrew is an expert in all aspects of soil and water management. He is a recognised industry leader in construction-phase erosion and sediment control and conducts regular training, consulting and expert witness services in this field. Andrew has worked on a wide range of sites including mines, gas projects, major infrastructure projects (road and rail), pipelines and subdivisions. He is also the President of the International Erosion Control Association (IECA) in Australasia. 1. No sensible submission can, in light of this stated expertise and experience (which is not challenged by Leda), be maintained. 2. In my opinion, Mr Macleod is an expert on "all aspects of soil…management" and he is therefore amply qualified to express the opinions he does in his affidavit for the purposes of s 79 of the Evidence Act. Conclusion 1. The arguments upon by Leda for not admitting into evidence the affidavit of Mr Macleod are rejected. 2. Leave is therefore granted to the Department to read the affidavit of Mr Andrew Macleod affirmed 22 November 2018. The exhibits on the voir dire are to be returned. ********** Amendments 04 December 2018 - typographical error 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: 04 December 2018