Sutherland Shire Council v Benedict Industries Pty Ltd [No 2] [2015] NSWLEC 39

Sutherland Shire Council v Benedict Industries Pty Ltd [No 2] [2015] NSWLEC 39

The supplementary affidavits were, in substance, responsive to the defendant's expert report. Div 2A does not forbid supplementary evidence after earlier preliminary disclosure; rather, its expert evidence regime, including ss 247K(f), 247L(a), 247N and 247O, contemplates that the parties know before trial the expert evidence likely to be led and the respects in which it is disputed. Granting leave would not be an abuse of process or permit impermissible splitting of the prosecution case, because the earlier prosecution evidence addressed the elements of the offences and the new material responded promptly to the defence expert's challenges. The Court's case management discretion favoured...

Jurisdiction
Australia
Judgment Date
19 March 2015
Procedural Posture
Class 5 Summary Criminal Proceedings Alleging Offences Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) / Prosecutor's Notice of Motion for Leave to File and Serve Supplementary Expert Affidavit Evidence and Supplementary Notices Under Div 2 a of Pt 5 Ch 4 of the Criminal Procedure Act 1986 (nsw), Before Trial
Outcome
Leave granted to the prosecutor to file and serve supplementary affidavits and a supplementary notice; proceedings stood over for directions.
Legal Topics
['preliminary Disclosure' 'case Management' 'supplementary Evidence' 'expert Evidence' 'abuse of Process' 'splitting the Prosecution Case' 'leave to File Evidence']
['criminal Procedure' 'environmental Planning and Assessment' 'practice and Procedure'] ['preliminary Disclosure' 'case Management' 'supplementary Evidence' 'expert Evidence' 'abuse of Process' 'splitting the Prosecution Case' 'leave to File Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 5 Summary Criminal Proceedings Alleging Offences Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) / Prosecutor's Notice of Motion for Leave to File and Serve Supplementary Expert Affidavit Evidence and Supplementary Notices Under Div 2 a of Pt 5 Ch 4 of the Criminal Procedure Act 1986 (nsw), Before Trial

Legal Issues

  1. 1 ["Whether the prosecutor should be granted leave to file and serve supplementary affidavits from Ian Nolan Drinnan and Pamela Anne Hazelton in response to the defendant's expert report." "Whether service of the supplementary expert evidence after the defendant's s 247K disclosure would constitute an abuse of process or unfair advantage contrary to Div 2A of Pt 5 Ch 4 of the Criminal Procedure Act 1986 (NSW)." 'Whether permitting the prosecutor to rely on the supplementary affidavits would impermissibly allow the prosecution to split its case.' 'Whether discretionary considerations, including delay, prejudice, costs and case management, warranted refusal of leave.']

Ratio Decidendi

The supplementary affidavits were, in substance, responsive to the defendant's expert report. Div 2A does not forbid supplementary evidence after earlier preliminary disclosure; rather, its expert evidence regime, including ss 247K(f), 247L(a), 247N and 247O, contemplates that the parties know before trial the expert evidence likely to be led and the respects in which it is disputed. Granting leave would not be an abuse of process or permit impermissible splitting of the prosecution case, because the earlier prosecution evidence addressed the elements of the offences and the new material responded promptly to the defence expert's challenges. The Court's case management discretion favoured...

Court Disposition

Leave granted to the prosecutor to file and serve supplementary affidavits and a supplementary notice; proceedings stood over for directions.

Orders

  • ['Grant leave to the prosecutor to file and serve upon the defendant the affidavit of Ian Nolan Drinnan sworn 4 February 2014 and the affidavits of Pamela Anne Hazelton sworn 11 February 2014 and 26 February 2014 respectively.' 'Grant leave to the prosecutor to file and serve a supplementary notice under ss 247E and...