Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 7) [2008] NSWLEC 202

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 7) [2008] NSWLEC 202

Leave was refused because the prosecutor had been on notice for at least a year, and on the available evidence since the 1994 commission of inquiry, that existing use rights for agricultural, grazing and horse-related activities were a live issue. The proposed reply evidence about historical use of the land was reasonably foreseeable and could have been obtained and led in the prosecution case, including after the prosecutor received significant defence witness material during the hearing and before it closed its case. The case was not special or exceptional, the evidence was not unavailable or merely formal, and allowing it would cause patent unfairness to the defendants after they had...

Jurisdiction
Australia
Judgment Date
27 June 2008
Procedural Posture
Summary Prosecution / Prosecutor's Notice of Motion for Leave to Adduce Evidence in Reply in a Part Heard Hearing
Outcome
Prosecutor's motion dismissed; defendants' costs of the motion reserved.
Legal Topics
['evidence in Reply by Prosecution' 'existing Use Rights' 're Opening Prosecution Case' 'fairness to Defendants' 'onus of Proof']
['criminal Procedure' 'evidence' 'environmental Planning and Land Use'] ['evidence in Reply by Prosecution' 'existing Use Rights' 're Opening Prosecution Case' 'fairness to Defendants' 'onus of Proof']

Case Brief

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Procedural Posture

Summary Prosecution / Prosecutor's Notice of Motion for Leave to Adduce Evidence in Reply in a Part Heard Hearing

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to adduce evidence in reply with respect to the defence of existing use rights.' 'Whether the evidence and details of the existing use rights defence could reasonably have been foreseen by the prosecutor.' 'Whether special or exceptional circumstances existed to justify allowing the prosecutor to lead evidence after the defendants had gone into evidence.' 'Whether granting leave would be unfair to the defendants.']

Ratio Decidendi

Leave was refused because the prosecutor had been on notice for at least a year, and on the available evidence since the 1994 commission of inquiry, that existing use rights for agricultural, grazing and horse-related activities were a live issue. The proposed reply evidence about historical use of the land was reasonably foreseeable and could have been obtained and led in the prosecution case, including after the prosecutor received significant defence witness material during the hearing and before it closed its case. The case was not special or exceptional, the evidence was not unavailable or merely formal, and allowing it would cause patent unfairness to the defendants after they had...

Court Disposition

Prosecutor's motion dismissed; defendants' costs of the motion reserved.

Orders

  • ["The prosecutor's motion filed 25 June 2008 is dismissed." "The defendants' costs of the prosecutor's motion are reserved."]