WaterNSW v Harris (No 2) [2019] NSWLEC 14

Land and Environment Court New South Wales

Medium Neutral Citation: WaterNSW v Harris (No 2) [2019] NSWLEC 14 Hearing dates: 11 February 2019 Date of orders: 11 February 2019 Decision date: 12 February 2019 Jurisdiction: Class 5 Before: Robson J Decision: Prosecutor's application for leave to adduce oral evidence-in-chief granted Catchwords: EVIDENCE — Leave sought by prosecutor to adduce oral evidence-in-chief — Whether defendants prejudiced by the calling of oral expert evidence — Leave granted Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 247J, 247K Land and Environment Court Rules 2007 (NSW) r 5.2 Uniform Civil Procedure Rules 2005 (NSW) Pt 31, r 31.21 Texts Cited: Australian Standard 3778: Measurement of Water Flow in Open Channels Land and Environment Court Practice Note – Class 5 Proceedings Category: Procedural and other rulings Parties: In proceedings 2018/00073936 WaterNSW (Prosecutor) Peter Harris (Defendant)

In proceedings 2018/00073940 WaterNSW (Prosecutor) Jane Harris (Defendant) Representation: Counsel: S W Aspinall with M Maconachie (Prosecutor) M R Elliott SC with C R Ireland (Defendants)

Solicitors: Norton Rose Fulbright (Prosecutor) Horton Rhodes Lawyers (Defendants) File Number(s): 2018/00073936; 2018/00073940 Publication restriction: No

Judgment 1. Prior to the luncheon adjournment on Monday 11 February 2019, the first day of these Class 5 proceedings, Mr S W Aspinall of counsel, who appeared with Mr M Maconachie of counsel for WaterNSW ('prosecutor'), made an application for leave to adduce oral evidence-in-chief from Glenn McDermott, an expert called by the prosecutor in response to some specific matters raised in an expert report of Daniel Martens ('Dr Martens' report') dated 8 February 2019. Dr Martens' report was prepared for Peter and Jane Harris (collectively, the 'defendants') and was provided to the prosecutor on Friday 8 February 2019. For the purpose of the application, Dr Martens' report was tendered without objection. 2. At the time of the application, Mr McDermott's affidavit attaching his expert report ('McDermott report') had been read in the prosecutor's case. 3. Having heard submissions and considered short evidence tendered in the application, I granted leave to the prosecutor to call further oral evidence from Mr McDermott and, apart from a short summary, deferred the giving of reasons. My reasons follow.