Secretary, Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien [2022] NSWLEC 63

Secretary, Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien [2022] NSWLEC 63

The notice of motion was dismissed because, although rain and flooding delayed some property access, the defendants did not provide a reasonable explanation for failing to retain experts earlier when the prosecutor's expert evidence had been available for over 12 months; any delay linked to consideration of s 13.4 of the Biodiversity Conservation Act 2016 (NSW) was a forensic decision and not an adequate explanation; Dr Robertson's unavailability was significantly due to other professional commitments; there was no evidence about availability of alternative experts; some field work was expected to be completed shortly; and vacating the dates would defer the hearing to March or April 2023...

Jurisdiction
Australia
Judgment Date
22 April 2022
Procedural Posture
Class 5 Criminal Proceedings Concerning Alleged Unauthorised Clearing of Native Vegetation / Defendants' Notice of Motion to Vacate Hearing Dates
Outcome
Notice of motion dismissed.
Legal Topics
['application to Vacate Hearing Dates' 'fair Trial' 'case Management' 'expert Evidence' 'unauthorised Clearing of Native Vegetation']
['criminal Procedure' 'environmental Law'] ['application to Vacate Hearing Dates' 'fair Trial' 'case Management' 'expert Evidence' 'unauthorised Clearing of Native Vegetation']

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Procedural Posture

Class 5 Criminal Proceedings Concerning Alleged Unauthorised Clearing of Native Vegetation / Defendants' Notice of Motion to Vacate Hearing Dates

Legal Issues

  1. 1 ['Whether the defendants had shown good reason to vacate the hearing dates fixed for 12 criminal proceedings listed for 10 days from 11 July 2022.' 'Whether delays caused by rainfall, flooding, expert availability and consideration of s 13.4 of the Biodiversity Conservation Act 2016 (NSW) justified vacating the hearing dates.']

Ratio Decidendi

The notice of motion was dismissed because, although rain and flooding delayed some property access, the defendants did not provide a reasonable explanation for failing to retain experts earlier when the prosecutor's expert evidence had been available for over 12 months; any delay linked to consideration of s 13.4 of the Biodiversity Conservation Act 2016 (NSW) was a forensic decision and not an adequate explanation; Dr Robertson's unavailability was significantly due to other professional commitments; there was no evidence about availability of alternative experts; some field work was expected to be completed shortly; and vacating the dates would defer the hearing to March or April 2023...

Court Disposition

Notice of motion dismissed.

Orders

  • ['The defendants are granted leave to amend the notice of motion filed 25 March 2022 to include proceedings numbers 2021/00066001; 2021/00066002; 2021/00066003; 2021/00066004; 2021/00066005; 2021/00066006; 2021/00066007; 2021/00066008; 2021/00066149; 2021/00066150; 2021/00066151; and 2021/00066152.' 'The notice of...