Cowra Shire Council v Fuller

[2015] NSWLEC 4

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cowra Shire Council v Fuller [2015] NSWLEC 4
Hearing dates:	30 January 2015
Decision date:	30 January 2015
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	Application dismissed. Hearing dates confirmed.
Catchwords:	PRACTICE AND PROCEDURE: application for vacation of hearing dates in sentencing proceedings – defendant pleaded guilty – matter not complex – counsel not available – whether applicant made attempts to seek alternate counsel – application refused.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 76A(1), 125(1)
Category:	Procedural and other rulings
Parties:	Cowra Shire Council (Prosecutor) Gregory Francis Fuller (Defendant)
Representation:	Counsel: Mr R O’Gorman-Hughes (Prosecutor) Ms C Lin (Defendant)   Solicitors: Bradley Allen Love Lawyers (Prosecutor) Hills Solicitors (Defendant)
File Number(s):	50209 of 2014

Ex tempore Judgment

The Defendant Seeks to Vacate Hearing dates

1. By notice of motion filed 29 January 2015, the defendant, in a Class 5 sentencing matter, Mr Gregory Fuller, seeks to vacate a two day sentence hearing set down for 4 and 5 February 2015.

2. The application to vacate comes before me in my capacity as duty judge.

3. The prosecutor, Cowra Shire Council (“the council”), neither opposes nor consents to the application.

4. Mr Fuller is charged with the demolition of a building without development consent contrary to ss 125(1) and 76A(1) of the Environmental Planning and Assessment Act 1979. Although the building was not heritage listed, Mr Fuller had been made aware by the council of the heritage significance of the building prior to its unlawful demolition.

5. Mr Fuller has pleaded guilty to the charge.

6. The reason for the late application to vacate the hearing dates is contained in an affidavit of Mr Ralph Ward sworn 29 January 2015. Mr Ward is Mr Fuller’s solicitor. In his affidavit Mr Ward states that:

2.    Messrs Hills Solicitors on behalf of Gregory Francis Fuller retained Mr Ian Lloyd of Queen’s Counsel, to undertake the carriage of the hearing of this matter, and the preparation for the hearing.

3.   I have been informed by Mr Lloyd of Queen’s Counsel, and verily believe, that as a consequence of a criminal trial which commenced in the District Court of New South Wales on Tuesday 27 January 2015 that Mr Lloyd QC will not be available to represent the Defendant on the nominated Court dates of 4 February 2015 and 5 February 2015.

4.   Mr Lloyd’s District Court trial was originally scheduled to finish some days prior to the hearing of this matter, however, due to unforeseen circumstances, including the unexpected discharge of a jury, the trial is now unable to conclude within the scheduled dates and will, unfortunately, continue into the nominated Court dates for the hearing of this matter.

5.    Mr Lloyd has been retained since the commencement of these proceedings and have [sic] had a continuous and active role in the preparation of the matter. The Defendant is concerned that should the matter proceed on 4 February 2015 and 5 February 2015 without the involvement of Mr Lloyd, QC he may prejudiced.

7. In short, therefore, it appears that Mr Ian Lloyd QC, Mr Fuller’s retained counsel, is no longer available to appear for Mr Fuller due to no fault of either Mr Fuller or Mr Lloyd QC (a new jury was empanelled on 28 January 2015, the same day that the jury was discharged).

8. The matter is otherwise ready to be heard on the allocated dates. That is to say, there is no outstanding evidence to be filed and a comprehensive and lengthy agreed statement of facts has been prepared and filed. Although the Court has not been furnished with any written outlines of argument by the parties, none were ordered (an oversight by the Court).

9. Notwithstanding the compendious agreed statement of facts, the Court was told by the parties that there remain four principal factual matters in dispute, potentially necessitating the calling of five witnesses:

1. first, whether the Mayor told Mr Fuller words to the effect that if he was in Mr Fuller’s position, he would demolish the building. Not only is the representation denied by the council, its relevance, in any event, is in contest;

2. second, whether the Deputy-Mayor issued (presumably unlawfully) instructions for the demolition of part or all of the Cowra Showgrounds. Again, the existence and relevance of this fact is challenged by the council;

3. third, the condition of the building prior to demolition. What remains in dispute, however, is unclear given the extensive evidence agreed to at paragraphs 54 to 58 of the agreed statement of facts. The council indicated that any further evidence relied upon by Mr Fuller in this regard may be agreed to, thereby obviating the need to cross-examine several of Mr Fuller’s witnesses; and

4. fourth, the value of the building prior to demolition. Similarly, leaving aside the disputed relevance of this evidence, the council indicated that it may agree to this fact and that no cross-examination of any witnesses in this regard would be necessary.

10. Although not agreed to by Mr Fuller, a review of the file indicates that the issues raised by the proceedings are not complex. This characterisation was agreed to by the council during the hearing of the application. The council also did not cavil with the proposition put by the Court that the matter could conclude in one day.

The Vacation Application is Rejected

11. Mr Ward’s affidavit does not disclose the following important information informing the exercise by the Court of its discretion to vacate the hearing dates:

1. precisely when it became apparent that Mr Lloyd QC would not be available to appear for Mr Fuller;

2. what attempts, if any, had been made to secure alternate legal counsel for Mr Fuller to allow the hearing to proceed; and

3. other than the likely wasted costs of having to secure new counsel, what prejudice would Mr Fuller may suffer if the hearing proceeded on the allocated dates.

12. As a consequence of questioning by the Court, Mr Fuller indicated that:

1. it was on the afternoon of 28 January 2015 that it was made known to him that Mr Lloyd QC was no longer available to represent him next week;

2. that no steps whatsoever had been taken to secure, or even attempt to secure, alternative counsel. Rather, Mr Fuller decided to secure the consent of the council to a vacation of the hearing dates; and

3. that other than wasted costs, it was unclear what prejudice would result to Mr Fuller if the hearing dates were not vacated.

13. Although trite, it is nevertheless important to note that merely because a defendant’s counsel of choice is no longer available to appear in proceedings, even if those proceedings are criminal in nature and even if the loss of counsel was not due to the fault of the defendant, this of itself will not automatically warrant vacation of the hearing dates.

14. Given that these proceedings do not concern the determination of the criminal liability of Mr Fuller; are not complex (notwithstanding the outstanding factual matters in dispute); are otherwise ready to proceed; and significantly, no steps have been taken by Mr Fuller to secure new counsel, the Court does not consider that it would be an appropriate case to exercise its discretion to vacate the hearing dates. Accordingly, the hearing dates are confirmed.

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Decision last updated: 03 February 2015