Ku-ring-gai Council v Abroon

[2010] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION:

Ku-ring-gai Council v Abroon [2010] NSWLEC 176

PARTIES:

PROSECUTOR
Ku-ring-gai Council

DEFENDANT
Abbas Abroon

FILE NUMBER(S):

50078, 50079, 50080 of 2009

CORAM:

Craig J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to vacate hearing date - sentence hearing - recently filed evidence identifying dispute as to defendant's conduct in committing offence - defendant's evidence not filed within time fixed by Court's directions - need to subpoena computer records relevant to disputed facts - determination of disputed facts bear upon penalty - interests of justice and fairness to defendant - hearing date vacated

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999, s 21A
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

21 September 2010

EX TEMPORE JUDGMENT DATE:

21 September 2010

LEGAL REPRESENTATIVES:

PROSECUTOR
T G Howard (barrister)
SOLICITOR
HWL Ebsworth Lawyers

DEFENDANT
H P Irish (barrister)
SOLICITOR
M E McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

21 September 2010

50078, 50079, 50080 of 2009

KU-RING-GAI COUNCIL v ABROON

EX TEMPORE JUDGMENT

1 HIS HONOUR: By summonses issued on 14 December 2009, the defendant is charged with two offences against s 125(1) of the Environmental Planning and Assessment Act 1979. Each summons alleges that the defendant erected a dual occupancy dwelling on land known as 23 – 25 Stanley Street, St Ives without there being in force an operative development consent authorising the erection of that building.

2 It appears from each summons that a development consent had been granted by the prosecutor for the erection of each of the two dwellings in question, known respectively as Building C and Building E, as part of a staged development scheme for the land. However, each consent was expressed to be subject to a deferred commencement condition which, so each summons indicates, had not been fulfilled at the time at which the respective dwellings were erected.

3 Each summons was returnable before the Court on 5 February last. The proceedings were then adjourned for three weeks at the request of the defendant so that counsel could be retained.

4 When the matter next came before the Court on 26 February, the proceedings were again adjourned on the application of the defendant who indicated that he was yet to consider his plea and had been unable to consult with counsel in order to receive appropriate advice.

5 On 19 March the proceedings were listed before Biscoe J. The defendant again appeared in person. He entered a plea of guilty to each of the two charges and consented to directions requiring steps to be taken by each party in preparation for a hearing on sentence. The matter was then fixed for hearing on 3 June.

6 By notice of motion returnable before the Court on 28 May, the defendant, through his solicitor, Mr McMahon, sought to vacate the hearing date. The defendant had lodged a number of appeals in Class 1 of the Court’s jurisdiction directed to curing the apparent illegality of the building construction that he had undertaken. He did this by appealing from the Council’s refusal to issue building certificates for Buildings C and E and also seeking subdivision certificates for the site, the result of which would be to ensure that each building constructed was located on a separate lot. The appeal proceedings had been heard over one day but had not, by 28 May, concluded.

7 The further hearing of the Class 1 appeals was fixed for 28 June. As the outcome of those appeals was considered by both prosecutor and defendant to be relevant to the hearing on penalty in the present proceedings, the defendant’s notice of motion to vacate the hearing fixed for 3 June was successful. It was not opposed by the prosecutor.

8 At the time of vacating the earlier hearing, the Acting Registrar of the Court fixed the sentence hearing for 22 September. At that same time she made orders directing those steps to be taken by the parties in order to prepare the matter for hearing. Those steps included a direction that the defendant file and serve any evidence upon which he proposed to rely by 13 August.

9 The latter direction was not observed, at least in accordance with the time fixed for that evidence to be filed. It was not until 3 September that the defendant filed his evidence in the form of an affidavit which he had sworn that day. He also filed an affidavit sworn by Martin Motahari, his building foreman. These affidavits were filed by the defendant as a self represented litigant.

10 The defendant’s affidavit sworn on 3 September contains a detailed narrative of the steps taken by him in developing the site at St Ives. It is unnecessary, for present purposes to recite that detail. A substantial part of the affidavit is directed to an explanation of the circumstances in which Buildings C and E came to be constructed. In essence, the defendant asserts that he proceeded to erect Buildings C and E on the assurance of John Tsiontsis, a registered building certifier, that a construction certificate would be issued for those buildings upon completion, provided Mr Tsiontsis was afforded the opportunity to carry out mandatory inspections during each stage of construction and on condition that structural engineering certification for each stage was obtained prior to each of his inspections. This assurance is said to have been given in a telephone conversation which occurred in December 2007.

11 The defendant details a number of inspections subsequently carried out by Mr Tsiontsis in apparent conformity with this arrangement. In his affidavit, Mr Motahari deposed to his observations of inspections carried out by Mr Tsiontsis, including inspection of Building C and Building E.

12 At the time at which the defendant asserts that he had the conversation with Mr Tsiontsis, the latter was already engaged on the Stanley Street project through his company, Construction Certifiers Pty Ltd. That company was the principal certifying authority in relation to the construction of two dwellings on the site known as Buildings A and B. The construction of those buildings is not controversial.

13 The defendant’s affidavit of 3 September was duly served upon the solicitors for the prosecutor. Under cover of a letter dated 13 September they served upon the defendant an unsworn statement of Mr Tsiontsis dated 9 September and expressed to be made “under objection”. In substance, that statement denies the conversation asserted by the defendant retaining Mr Tsiontsis in respect of Buildings C and E. Mr Tsiontsis also denies having carried out any inspections of those dwellings.

14 By notice of motion filed on 15 September, the defendant now seeks to vacate the sentence hearing fixed for 22 September. Mr McMahon, solicitor, has again been retained on behalf of the defendant to prepare the notice of motion. In the affidavit sworn in support of the motion, Mr Abroon states that, in the time available since receiving the statement of Mr Tsiontsis, he has not been able adequately to prepare his response. The defendant asserts that the statement of Mr Tsiontsis will be harmful to him without a proper opportunity to provide evidence in response to it.

15 On behalf of the defendant, Mr McMahon has caused subpoenas to be issued to address the disputed facts, including a subpoena addressed to Mr Tsiontsis requiring production of both his written and computer records. The latter records are required because the defendant has annexed to his affidavit of 3 September, copies of what appear to be email exchanges between him and Mr Tsiontsis making appointments for inspections of Buildings C and E. In his statement Mr Tsiontsis has denied receiving by email any requests for inspections of the land.

16 The subpoenas issued on behalf of the defendant are not returnable until 28 September. However, in a letter received only today by the defendant’s solicitor, Mr Tsiontsis has indicated, through solicitors now acting for him, that the documentary material required by the subpoena can be produced but electronic records, including computer records, are not available. Because of the significance which the defendant attaches to email exchanges, he now wishes to subpoena records from the computer server for the email address of Mr Tsiontsis.

17 The defendant’s motion to vacate the hearing date is opposed by the prosecutor. In summary, it says -

(i) the defendant should have been alive to the factual dispute with Mr Tsiontsis from the affidavit of Ms Greenshields sworn 30 October 2009 and filed at the time at which proceedings were commenced;
(ii) the difficulty which the defendant now faces results from his failure to observe the timetable fixed for the filing of his evidence by 13 August.

18 I accept that the defendant is substantially responsible for the difficulty in which he presently finds himself. Had his affidavit been filed by 13 August, as directed, and, assuming that the response from Mr Tsiontsis was received within 14 days of that evidence, it is likely that there would have been sufficient time to address the allegations that are now in dispute, including sufficient time to issue necessary subpoenas.

19 That circumstance having been acknowledged, there are factors that favour vacating the hearing date. These factors may be summarised as follows -

(i) breach of s 125(1) of the EPA Act is a serious offence for which a maximum penalty of $1.1M is provided;
(ii) the essence of the assertion made by the defendant as to his reliance upon Mr Tsiontsis is important in assessing penalty as, if on the balance of probabilities his version of events is accepted, the assertion, also made in his affidavit, that at no time did he believe that he was acting in breach of the law, is supported;
(iii) conversely, if his evidence is not accepted in light of the evidence intended to be called from Mr Tsiontsis, then that circumstance is one having the potential to be a factor which is aggravating rather than mitigating (cf s 21A Crimes (Sentencing Procedure) Act 1999).

20 Vacating the hearing on sentence for a second time is a course not lightly to be undertaken. Such a course is most unsatisfactory in the context of the Court’s proper and efficient control of proceedings before it. Even in prosecutions for criminal offences, failure to abide, in a timely manner, directions made for the preparation and conduct of a hearing should not be regarded with leniency.

21 However, the dictates of justice and fairness to the defendant do, in the present context, weigh in favour of the defendant’s application. In addition to the factors that I have already identified, I take account of the circumstances that -

(i) the adjournment of the hearing fixed for 3 June was occasioned by circumstances not entirely within the defendant’s control in that the hearing of Class 1 proceedings was, so it was agreed by both parties, material to the determination of the present proceedings;
(ii) Class 1 proceedings were determined in a manner that allowed building certificates for Buildings C and E;
(iii) no continuing offence is alleged;
(iv) Mr Howard, on behalf of the prosecution, fairly acknowledges the significance of the issue raised in the recent affidavits and statement to the proper consideration of the penalty to be imposed upon the defendant.

22 The price for the adjournment will be twofold. First, the defendant will be required to take the first available hearing date after 8 October for the disposition of these proceedings. Second, the costs associated with the present notice of motion are costs that are likely to be required to be borne by the defendant. However, it is appropriate to await the final hearing on sentence before determining the question of costs in their totality.

23 Accordingly, the orders that I make are as follows:

1. Vacate the hearing date fixed for 22 September 2010.
2. List the matter before the Registrar on Friday 24 September 2010 for the purpose of fixing a hearing date, such hearing date to be the first available hearing date after 8 October 2010 and suitable to the legal representatives of the prosecutor.
3. Statement of agreed facts together with a bundle of any documents on which the prosecutor proposes to rely to be filed and served on or before 1 October 2010.
4. Prosecutor to file and serve any further evidence in reply upon which it proposes to rely on or before 1 October 2010.
5. Defendant to file and serve any further evidence upon which he proposes to rely on or before 7 October 2010.
6. Costs of the notice of motion reserved.
7. Liberty reserved to either party to apply on 48 hours notice to the other party and to the Court.
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