M & S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24

M & S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24

The Court held that the earlier refusal to make a s 247E disclosure order did not make the Defendant's Notice to Produce an abuse of process, and that the Notice, narrowed to documents potentially relevant to the Strikeout Motion, was permissible and reasonable. The Court also held that the Acting Registrar's orders should be vacated because the parties were not given an opportunity to be heard before those orders were made, amounting to a denial of procedural fairness.

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Class 5 Proceedings / Determination of Competing Notices of Motion Concerning a Notice to Produce
Outcome
The Prosecutor's Notice of Motion was dismissed subject to amendment of the Notice to Produce; the Defendant's Amended Notice of Motion was granted in part; costs were reserved.
Legal Topics
['notice to Produce' 'disclosure' 'strike Out or Permanent Stay Application' 'abuse of Process' 'prima Facie Case' 'procedural Fairness']
['practice and Procedure' 'criminal Procedure' 'environmental Law'] ['notice to Produce' 'disclosure' 'strike Out or Permanent Stay Application' 'abuse of Process' 'prima Facie Case' 'procedural Fairness']

Case Brief

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Procedural Posture

Class 5 Proceedings / Determination of Competing Notices of Motion Concerning a Notice to Produce

Legal Issues

  1. 1 ["Whether the Defendant's Notice to Produce should be set aside as an abuse of process because Moore J had declined to make a disclosure order under s 247E of the Criminal Procedure Act 1986 (NSW) before the Strikeout Motion." 'Whether the documents sought by the Notice to Produce were relevant and reasonably required for the hearing of the Strikeout Motion, including issues under s 219(2) of the Protection of the Environment Operations Act 1997 (NSW).' "Whether the Acting Registrar's orders vacating the earlier listing of the Notice to Produce should be vacated for denial of procedural fairness." 'Whether the Prosecutor should be ordered to comply with the Notice to Produce in an amended form within 48 hours.']

Ratio Decidendi

The Court held that the earlier refusal to make a s 247E disclosure order did not make the Defendant's Notice to Produce an abuse of process, and that the Notice, narrowed to documents potentially relevant to the Strikeout Motion, was permissible and reasonable. The Court also held that the Acting Registrar's orders should be vacated because the parties were not given an opportunity to be heard before those orders were made, amounting to a denial of procedural fairness.

Court Disposition

The Prosecutor's Notice of Motion was dismissed subject to amendment of the Notice to Produce; the Defendant's Amended Notice of Motion was granted in part; costs were reserved.

Orders

  • ['Subject to the amendment to the Notice to Produce as referred to in order (2), the Notice of Motion filed by the Prosecutor on 27 January 2022 is dismissed.' 'The orders made by the Acting Assistant Registrar on 16 December 2021 are vacated.' 'The Prosecutor is ordered to comply with paras 1 and 2 of the Notice to...