Leichhardt Council v Geitonia Pty Limited and Gertos [2015] NSWLEC 25

Leichhardt Council v Geitonia Pty Limited and Gertos [2015] NSWLEC 25

The defendants had not shown grounds to vacate the hearing, compel or have the Court call Foong Takounlao or Vince Nesci, exclude evidence served after 9 February 2015, or require the requested disclosure orders. The Court could not direct the prosecutor to call witnesses, the circumstances were not most exceptional so as to justify the Court calling them, the late evidence largely responded to the newly identified necessity defence and any prejudice could be managed, and the prosecutor's responses meant no disclosure orders were presently required.

Jurisdiction
Australia
Judgment Date
23 February 2015
Procedural Posture
Class 5 Criminal Proceedings Concerning Charges of Demolition Otherwise Than in Accordance With a Development Consent / Notices of Motion by Defendants to Vacate Trial Dates or for Alternative or Further Relief on the First Day of Trial
Outcome
Notices of motion dismissed.
Legal Topics
['application to Vacate Trial Dates' 'late Service of Prosecution Evidence' 'prosecutorial Disclosure' 'calling of Prosecution Witnesses' 'evidence Act 1995 S 38 Notice' 'defence of Necessity' 'criminal Procedure Act 1986 Division 2 a Case Management']
['evidence' 'practice and Procedure' 'criminal Law' 'planning and Environment'] ['application to Vacate Trial Dates' 'late Service of Prosecution Evidence' 'prosecutorial Disclosure' 'calling of Prosecution Witnesses' 'evidence Act 1995 S 38 Notice' 'defence of Necessity' 'criminal Procedure Act 1986 Division 2 a Case Management']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings Concerning Charges of Demolition Otherwise Than in Accordance With a Development Consent / Notices of Motion by Defendants to Vacate Trial Dates or for Alternative or Further Relief on the First Day of Trial

Legal Issues

  1. 1 ['Whether the trial dates should be vacated because of alleged late service of evidence and disclosure by the prosecutor.' 'Whether the Court should order Foong Takounlao and Vince Nesci to give evidence or itself call them as witnesses.' 'Whether evidence served by the prosecutor after 9 February 2015 should be excluded.' 'Whether the prosecutor should be ordered to disclose documents concerning immunisation from prosecution granted to John and Sozo Loukis.' 'Whether the prosecutor should be ordered to discover documents relating to the decision to issue a notice of intention to cross-examine Andrew Cutuk under s 38 of the Evidence Act.']

Ratio Decidendi

The defendants had not shown grounds to vacate the hearing, compel or have the Court call Foong Takounlao or Vince Nesci, exclude evidence served after 9 February 2015, or require the requested disclosure orders. The Court could not direct the prosecutor to call witnesses, the circumstances were not most exceptional so as to justify the Court calling them, the late evidence largely responded to the newly identified necessity defence and any prejudice could be managed, and the prosecutor's responses meant no disclosure orders were presently required.

Court Disposition

Notices of motion dismissed.

Orders

  • ['The notices of motion filed by the defendants Bill Gertos and Geitonia Pty Ltd on 23 February 2015 are dismissed.']