Director-General, Department of Planning v Epacris Pty Limited [2006] NSWLEC 306

Director-General, Department of Planning v Epacris Pty Limited [2006] NSWLEC 306

The mistaken naming of the Director-General, Department of Planning was a clerical error because the instructions and intention were always to prosecute on behalf of the Director-General, Department of Natural Resources, the Court order and part of the summons identified that prosecutor, and the mistake was not misleading or such as to cause reasonable doubt. Under Pt 20 r 4 of the Supreme Court Rules 1970 it was in the interests of justice to allow the amendment, which took effect from the date of filing of the summons, so the proceedings were not a nullity. However, no statutory or rules-based power authorised the Court to order entry and inspection of the defendant's real property by...

Jurisdiction
Australia
Judgment Date
06 June 2006
Procedural Posture
Class 5 Criminal Prosecution for Alleged Contravention of S 21(2) of the Native Vegetation Conservation Act 1997 / Two Notices of Motion by the Prosecutor: to Amend the Summons to Change the Identity of the Prosecutor and for Access to the Defendant's Property for Inspection and Measurements
Outcome
The prosecutor's motion to amend the summons was allowed; the prosecutor's motion for entry and inspection was dismissed; the prosecutor was ordered to pay the defendant's costs of both motions.
Legal Topics
['amendment of Summons' 'mistake in Name of Party' 'limitation Period' 'entry and Inspection of Property' 'native Vegetation Clearing']
['environmental Law' 'criminal Procedure' 'practice and Procedure'] ['amendment of Summons' 'mistake in Name of Party' 'limitation Period' 'entry and Inspection of Property' 'native Vegetation Clearing']

Case Brief

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Procedural Posture

Class 5 Criminal Prosecution for Alleged Contravention of S 21(2) of the Native Vegetation Conservation Act 1997 / Two Notices of Motion by the Prosecutor: to Amend the Summons to Change the Identity of the Prosecutor and for Access to the Defendant's Property for Inspection and Measurements

Legal Issues

  1. 1 ['Whether the summons could be amended after expiry of the limitation period to name the Director-General, Department of Natural Resources as prosecutor instead of the Director-General, Department of Planning.' 'Whether the proceedings were a nullity because the Crown Solicitor had no instructions to act for the named prosecutor when the summons was filed.' "Whether the Court had power to order entry and inspection of the defendant's property by the prosecutor's legal representatives and expert witnesses."]

Ratio Decidendi

The mistaken naming of the Director-General, Department of Planning was a clerical error because the instructions and intention were always to prosecute on behalf of the Director-General, Department of Natural Resources, the Court order and part of the summons identified that prosecutor, and the mistake was not misleading or such as to cause reasonable doubt. Under Pt 20 r 4 of the Supreme Court Rules 1970 it was in the interests of justice to allow the amendment, which took effect from the date of filing of the summons, so the proceedings were not a nullity. However, no statutory or rules-based power authorised the Court to order entry and inspection of the defendant's real property by...

Court Disposition

The prosecutor's motion to amend the summons was allowed; the prosecutor's motion for entry and inspection was dismissed; the prosecutor was ordered to pay the defendant's costs of both motions.

Orders

  • ["The prosecutor's notice of motion filed on 24 February 2006 is allowed and the prosecutor is granted leave to file an amended summons naming the Director-General, Department of Natural Resources as the prosecutor." "The prosecutor must pay the defendant's costs of the notice of motion filed on 24 February 2006."...