Director General Land And Water Conservation v Greentree [2004] NSWLEC 466

Director General Land And Water Conservation v Greentree [2004] NSWLEC 466

The Court is vested with power to make a pre-trial order requiring expert evidence in chief to be adduced by affidavit. The Evidence Act 1995 does not preclude such an order because the issue concerns the manner in which evidence is tendered or adduced, not admissibility, and s 11 preserves the Court's power to control proceedings. The identified statutory, rule-based, implied and incidental powers are capable of sustaining the order, subject to any necessary modification arising from Rules 3J and 3K of Pt 75 of the Supreme Court Rules.

Jurisdiction
Australia
Judgment Date
20 August 2004
Procedural Posture
Class 5 Criminal Prosecutions Charging Offences Against the Native Vegetation Conservation Act 1997 / Interlocutory Notice of Motion Seeking a Pre Trial Direction That Expert Evidence in Chief Be Given by Affidavit
Outcome
The Court held that it had the requisite power to make a pre-trial order of the kind sought by the Prosecutor, subject to any necessary modification because of Rules 3J and 3K of Pt 75 of the Supreme Court Rules; the merits of making the order were not determined.
Legal Topics
['pre Trial Directions' 'expert Evidence' 'evidence in Chief by Affidavit' 'court Power to Control Proceedings' 'land and Environment Court Class 5 Proceedings']
['practice and Procedure' 'criminal Law' 'evidence' 'environmental Law'] ['pre Trial Directions' 'expert Evidence' 'evidence in Chief by Affidavit' 'court Power to Control Proceedings' 'land and Environment Court Class 5 Proceedings']

Case Brief

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Procedural Posture

Class 5 Criminal Prosecutions Charging Offences Against the Native Vegetation Conservation Act 1997 / Interlocutory Notice of Motion Seeking a Pre Trial Direction That Expert Evidence in Chief Be Given by Affidavit

Legal Issues

  1. 1 ['Whether the Land and Environment Court has power in pending criminal proceedings to order that the evidence in chief of nominated expert witnesses be given by affidavit rather than orally at trial.' "Whether the Evidence Act 1995 precludes such an order in the absence of the defendants' consent." 'Whether any order for expert evidence by affidavit may need modification because of Rules 3J and 3K of Part 75 of the Supreme Court Rules.']

Ratio Decidendi

The Court is vested with power to make a pre-trial order requiring expert evidence in chief to be adduced by affidavit. The Evidence Act 1995 does not preclude such an order because the issue concerns the manner in which evidence is tendered or adduced, not admissibility, and s 11 preserves the Court's power to control proceedings. The identified statutory, rule-based, implied and incidental powers are capable of sustaining the order, subject to any necessary modification arising from Rules 3J and 3K of Pt 75 of the Supreme Court Rules.

Court Disposition

The Court held that it had the requisite power to make a pre-trial order of the kind sought by the Prosecutor, subject to any necessary modification because of Rules 3J and 3K of Pt 75 of the Supreme Court Rules; the merits of making the order were not determined.

Orders

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