Environment Protection Authority v BMG Environmental Group Pty Ltd and Barnes

[2012] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v BMG Environmental Group Pty Ltd and Barnes [2012] NSWLEC 48

Hearing dates:

19/03/2012

Decision date:

19 March 2012

Jurisdiction:

Class 5

Before:

Biscoe J

Decision:

Leave granted to solicitor to cease to act.

Catchwords:

PRACTICE AND PROCEDURE:- leave for solicitor to cease to act.

Legislation Cited:

Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005 r 7.29

Category:

Procedural and other rulings

Parties:

50369 and 50371 of 2011
Environment Protection Authority (Prosecutor)

BMG Environmental Group Pty Ltd (Defendant)

50370 and 50372 of 2011
Environment Protection Authority (Prosecutor)
Allan Charles Barnes (Defendant)

Representation:

COUNSEL:
Mr S Rushton SC (Prosecutor)
Mr F Kunc SC (Defendant)
SOLICITORS:
Office of Environment and Heritage (Prosecutor)
A R Walmsley & co (Defendant)

File Number(s):

50369-70 and 50371-72 of 2011

EX TEMPORE Judgment

1. I am dealing with a notice of motion in each of these matters by Mr Adrian Richard Walmsley, solicitor, for leave to file and serve forthwith a notice of ceasing to act for the defendant. The essential basis of the motions is that the two directors of the corporate defendant are deadlocked in relation to this matter. The other defendant is one of these directors.

1. It has been suggested that the leave is necessary pursuant to r 7.29 of the Uniform Civil Procedure Rules 2005. It is not apparent to me from a scrutiny of Part 5 of the Land and Environment Court Rules 2007 that that is one of the provisions of the Uniform Civil Procedure Rules which apply to criminal proceedings in this jurisdiction. Neither Mr Walmsley nor the prosecutor are able to point to any other provision which requires the leave of the Court. Nevertheless, as there is urgency - the trial is due to start in a week - I will not postpone a decision. If leave is required, then I propose to grant it and make the orders sought in the notices of motion.

1. In addition, the prosecutor has proposed that in order to flush out whether the proceedings will continue to be defended that a direction be made that each director indicate promptly in writing whether the company intends to maintain the plea of not guilty and an equivalent direction to the individual defendant, who is one of the directors, to indicate whether he intends to maintain his plea of not guilty. Directions to that effect are advisable particularly as there are some 15 witnesses in the prosecution case and their precise role is likely to be affected by whether or not the defendants maintain their plea of not guilty. I will also grant liberty to apply on short notice so that if it is necessary for the matter to be mentioned again before the trial starts, that can be attended to in short order.

1. The orders of the Court in each of these matters are as follows:

1.   Grant to Adrian Richard Walmsley, solicitor, leave to file and serve forthwith a notice of ceasing to act for the defendant in these proceedings.

2.   That the defendant be served with a copy of these orders and the notice of ceasing to act electronically to Mark Watson of Watson Mangioni Lawyers Pty Ltd solicitors of Sydney at [email protected] and Allan Barnes and [email protected] .

3.   Direct that each of the directors of BMG Environmental Group Pty Ltd notify the prosecutor in writing within one day whether he intends that the company maintain its plea of not guilty. 11

4.   Direct that Allan Charles Barnes notify the prosecutor in writing within one day whether he intends to maintain his plea of not guilty.

5.   Liberty to apply on short notice.

6.   The above o rders may be entered forthwith.