Leichhardt Council v Geitonia Pty Ltd (No 5)

[2015] NSWLEC 33

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leichhardt Council v Geitonia Pty Ltd (No 5) [2015] NSWLEC 33

Hearing dates:

6 March 2015

Date of orders:

06 March 2015

Decision date:

06 March 2015

Jurisdiction:

Class 5

Before:

Biscoe J

Decision:

(1) In relation to the defence of necessity, the prosecution expert and the expert for the defendants Geitonia Pty Ltd and Bill Gertos give evidence concurrently at the end of the prosecution case.

(2) Prior to giving their evidence, the experts are to confer in order to identify and report to the Court on any matters on which they agree, and the matters on which they disagree and the reasons for their disagreement. If time permits, they are to reduce their report to the Court to writing.

Catchwords:

PRACTICE – criminal trial – consent orders that the expert for the prosecution and the expert for defendants give evidence concurrently and confer beforehand in order to identify any matters on which they agree, and any matters on which they disagree and the reasons for their disagreement.

Cases Cited:

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 3) [2010] NSWLEC 135, (2010) 175 LGERA 160
Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121

Category:

Procedural and other rulings

Parties:

50795 of 2013
Leichhardt Council (Prosecutor)
Geitonia Pty Limited (Defendant)

50796 of 2013
Leichhardt Council (Prosecutor)
GRC Projects Pty Ltd 135 672 294 (in liq) (Defendant)

50798 of 2013
Leichhardt Council (Prosecutor)
Bill Gertos (Defendant)

Representation:

COUNSEL:
50795 and 50798 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
G Thomas (Defendant)
50796 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
N/A(Defendant)

SOLICITORS:
50795 and 50798 of 2013
Pikes & Verekers (Prosecutor)
Jordan Djundja (Defendant)
50796 of 2013
Pikes & Verekers (Prosecutor)
N/A (Defendant)

File Number(s):

50795/13, 50796/13, 50798/13

EX TEMPORE Judgment

1. This appears to be the first criminal trial in this Court in which consent orders are to be made that the parties’ experts give evidence concurrently and confer beforehand in order to identify any matters on which they agree, matters on which they disagree and the reasons for disagreement. However, concurrent expert evidence has been given by consent in at least one earlier sentencing hearing in this Court. In civil matters in this Court’s jurisdiction, the Court is empowered to, and normally does, give such directions where there is expert evidence on both sides. In criminal prosecutions in Class 5 of the Court’s jurisdiction, the Court has no power to give such directions except with the consent of the parties: Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd(No 3) [2010] NSWLEC 135, (2010) 175 LGERA 160 (Pepper J). There is no reason why parties in a criminal matter cannot agree to that salutary process: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 at [36] (Biscoe J)

2. Briefly, the background is that the three defendants are charged with demolishing the front façade of a building on Parramatta Road, Annandale without development consent where consent was required and contrary to the terms of a development consent. Two of the defendants, Mr Bill Gertos and his company Geitonia Pty Ltd, have recently given notice of a defence that it was necessary to demolish the façade because of its condition. On that issue the prosecution has obtained a report from an expert witness and the defendants have retained an expert to provide a report in response. The prosecution expert is due to give his evidence at the end of the prosecution case (being the next day of the trial). Upon my raising the question with counsel, the prosecutor and those defendants consented to the directions to which I have referred.

3. By consent the Court directs that:

1. In relation to the defence of necessity, the prosecution expert and the expert for the defendants Geitonia Pty Ltd and Bill Gertos give evidence concurrently at the end of the prosecution case.

2. Prior to giving their evidence, the experts are to confer in order to identify and report to the Court on any matters on which they agree, and the matters on which they disagree and the reasons for their disagreement. If time permits, they are to reduce their report to the Court to writing.

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