Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182

The multi-count amendments could not be permitted because substituting 41 counts for Charge 2 and 40 counts for Charge 3 would cause significant injustice to the Company under s 21(1) of the Criminal Procedure Act 1986, including radically increased maximum penalty exposure, risks flowing from multiple convictions, reputational consequences, and the effective laying of additional charges after the limitation period had expired. Taking the Bradbury affidavit and supporting material at its highest would not overcome that injustice, so the application to reopen was dismissed. The alternative single-count amendments were within power and not unjust because the Company knew the essential...

Jurisdiction
Australia
Judgment Date
27 November 2019
Procedural Posture
Class 5 Prosecution / Notices of Motion to Amend Charges and Notice of Motion Seeking Leave to Reopen Amendment Proceedings
Outcome
Application to reopen dismissed; leave to rely on multi-count amended summonses refused; leave granted to amend each proceeding to rely on a single charge; no order as to costs.
Legal Topics
['amendment of Charges' 'duplicitous Charges' 'application to Reopen' 'development Consent Conditions' 'limitation Period for Proceedings' 'totality Principle' 'publication Orders']
['criminal Procedure' 'environmental Planning and Development' 'costs'] ['amendment of Charges' 'duplicitous Charges' 'application to Reopen' 'development Consent Conditions' 'limitation Period for Proceedings' 'totality Principle' 'publication Orders']

Case Brief

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Procedural Posture

Class 5 Prosecution / Notices of Motion to Amend Charges and Notice of Motion Seeking Leave to Reopen Amendment Proceedings

Legal Issues

  1. 1 ['Whether the Prosecutor should be granted leave to reopen the amendment proceedings to rely on the affidavit of Alan Bradbury sworn on 28 June 2019 and supporting material.' 'Whether Charges 2 and 3 could be amended to substitute multiple counts for the single duplicitous charge in each proceeding without injustice under s 21(1) of the Criminal Procedure Act 1986.' 'Whether, in the alternative, Charges 2 and 3 could be amended to rely on a single count alleging breach of Condition (4) on 31 January 2015 and breach of Condition (6) on 18 March 2015.' 'Whether the proposed amendments were impermissible because the charges did not disclose an offence known to law or amounted to fresh charges laid after expiry of the limitation period.' 'What costs order should be made where each party had partial success.']

Ratio Decidendi

The multi-count amendments could not be permitted because substituting 41 counts for Charge 2 and 40 counts for Charge 3 would cause significant injustice to the Company under s 21(1) of the Criminal Procedure Act 1986, including radically increased maximum penalty exposure, risks flowing from multiple convictions, reputational consequences, and the effective laying of additional charges after the limitation period had expired. Taking the Bradbury affidavit and supporting material at its highest would not overcome that injustice, so the application to reopen was dismissed. The alternative single-count amendments were within power and not unjust because the Company knew the essential...

Court Disposition

Application to reopen dismissed; leave to rely on multi-count amended summonses refused; leave granted to amend each proceeding to rely on a single charge; no order as to costs.

Orders

  • ['In Matter No 381474 of 2016, the Notice of Motion of 28 June 2019 seeking to reopen those proceedings and to rely on the affidavit of Alan Bradbury sworn on 28 June 2019 is dismissed.' 'In Matter No 381474 of 2016, leave to rely on an Amended Summons pleading 41 counts alleging breaches of Condition (4) is...