Hijazi v Canterbury City Council (No 1)

[2007] NSWLEC 393

Land and Environment Court

of New South Wales

CITATION:

Hijazi v Canterbury City Council (No 1) [2007] NSWLEC 393

PARTIES:

APPLICANT
Ghassan Hijazi

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

60002 of 2007

CORAM:

Jagot J

KEY ISSUES:

Appeal :- application leave to rely on fresh evidence - whether leave in interests of justice - leave refused

LEGISLATION CITED:

Crimes (Appeal and Review) Act 2001
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

14/6/07

EX TEMPORE JUDGMENT DATE:

14 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ghassan Hijazi (in person)
SOLICITORS
N/A

RESPONDENT
Mr D Jordan
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

14 June 2007

60002 of 2007

GHASSAN HIJAZI
Applicant

CANTERBURY CITY COUNCIL
Respondent

JUDGMENT

Jagot J:

1 This is an application for leave by the appellant to rely upon fresh evidence in these proceedings. The evidence, as I understand it, would be sworn testimony from the appellant about certain discussions that he had with Mr Jauncey, Council officer, whose evidence was tendered as Exhibit 1 before the Magistrate in the Local Court.

2 According to s 37(2) of the Crimes (Appeal and Review) Act 2001,

Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

3 This case came before me on 20 April 2007, at which time the appellant appeared. I fixed the proceedings for hearing and made a direction that the appellant was to file and serve a notice of motion seeking leave to call fresh evidence, including the fresh evidence, by 27 April 2007, with the return date for this notice of motion to be 4 May 2007 before the List Judge. However, no notice of motion seeking leave to call fresh evidence was filed and served, and the respondent, but not the appellant, appeared before Lloyd J on 4 May 2007. The Court noted at that time that the appellant had not filed and served any notice of motion for leave to call fresh evidence in accordance with the directions I made, and ordered the hearing date of 14 June 2007 be confirmed and the appeal be by way of a re-hearing on the evidence given in the original Local Court proceedings. The Court also directed the respondent to notify the appellant of these orders. Additionally, on 7 May 2007, the Court forwarded copies of the orders to both parties.

4 It is now the hearing of 14 June 2007. At the commencement of the hearing, I clarified with the parties that the hearing was to be by way of a re-hearing based on the evidence that was before the Local Court, because no notice of motion seeking leave to rely on fresh evidence had been filed and served. Both parties confirmed this and we identified the evidence that was before the Local Court and the transcript so that the hearing could proceed.

5 The appellant provided an outline of his submissions as to why he should not have been convicted. These primarily focus on two issues, as I understand it. First, that the evidence before the Magistrate was derived from an inspection on 1 February 2006, which had been carried out without prior notice having been given under s 118C of the Environmental Planning and Assessment Act 1979. Secondly, that the appellant had already been charged with an overlapping offence or offences in May 2006. In the course of his submissions about these two grounds, the appellant referred to various discussions he said he had with Mr Jauncey. When I asked where the evidence of those discussions was in the material, it became apparent that the evidence was not part of the proceedings in the Local Court. The appellant, in response to my query, sought leave to call fresh evidence being, presumably, evidence that he would give by way of sworn testimony in these proceedings.

6 The respondent opposes the application for leave, first, by reference to the directions already made to which I have referred and, secondly, by reference to what it describes as the contradictory position of the appellant in the Local Court. With respect to this latter issue, the respondent refers to pp 9 and 10 of the transcript, where it appears that the appellant only objected to evidence derived from an inspection by a Mr Bulloch on 5 July 2006 (apparently not admitted in the proceedings), but did not object to the evidence from Mr Jauncey’s inspection on 1 February 2006. The respondent also notes that the type of fresh evidence that has been foreshadowed by the appellant is quite likely to lead to the need for further evidence from the respondent, I would assume from Mr Jauncey.

7 In these circumstances I am not satisfied that it is in the interest of justice that the appellant be given leave to call this fresh evidence. In particular, there has been ample opportunity for the appellant to make the application before today. Moreover, as the respondent said, when the issue of admissibility of evidence from inspections was raised, the only objection taken was to the evidence of 5 July 2006. Further, I think it is very likely that the result would be further evidence from at least Mr Jauncey. In these circumstances, it seems to me that the interests of justice are best served by the appeal proceeding on the common basis up until at least the last half-hour, namely, that the re-hearing is to be on the evidence before the Local Court.

8 Accordingly, I decline to exercise leave in the appellant’s favour.

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