Morrison v Defence Maritime Services Pty Ltd - [2007] NSWLEC 118

Land and Environment Court

of New South Wales

CITATION: Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 118

PARTIES:
50049 of 2005
PROSECUTOR
Anthony Morrison
DEFENDANT:
Defence Maritime Services Pty Ltd
50048 of 2005
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Allen Coates
50014 of 2006
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Danny Mahon

FILE NUMBER(S): 50048-49 of 2005; 50014 of 2006

CORAM: Biscoe J

KEY ISSUES: Practice and Procedure :- three prosecutions heard together - application by prosecution, after defence cases are opened, that evidence in each proceeding be evidence in the other or that the prosecutor have leave to adduce further evidence or leave to reopen case - application refused.

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Bulejcik v The Queen (1996) 185 CLR 375;
Bulling (Steven Shane) [1999] NSWCCA 429;
Crampton v The Queen (2000) 206 CLR 161;
Filipowski v Island Maritime Ltd [2006] NSWLEC 750;
Filipowski v Vopak Terminals Sydney [2006] NSWLEC 104;
Henning v Lynch [1974] 2 NSWLR 254;
Killick v The Queen (1981) 147 CLR 565;
Metwally v University of Wollongong (1985) 60 ALR 6;
Moss v Brown [1979] 1 NSWLR 114;
Ratten v The Queen (1974) 131 CLR 510;
R v Olbrich (1999) 199 CLR 270 ;
R v Payne (1949) 35 CAR 43;
Shaw v The Queen (1952) 85 CLR 365;
Urban Transport Authority v Nweiser (1992) 28 NSWLR 471;
Weininger v The Queen (2003) 212 CLR 629

DATES OF HEARING: 27 - 28 February 2007

EX TEMPORE JUDGMENT DATE: 28 February 2007

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr A Hill
SOLICITORS
Dibbs Abbott Stillman
FIRST AND SECOND DEFENDANTS:
Mr G Grogin
SOLICITORS
Ebsworth & Ebsworth
THIRD DEFENDANT:
Mr D A McLure
SOLICITORS
Norton White

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 February 2007

50049 of 2005;

ANTHONY MORRISON v DEFENCE MARITIME SERVICES PTY LTD

50048 of 2005

ANTHONY MORRISON v ALLEN COATES

50014 of 2006

ANTHONY MORRISON v DANNY MAHON
EX TEMPORE JUDGMENT

1 HIS HONOUR: Before me are notices of motion filed in court yesterday morning by the prosecution in each of these three matters. This is the fifth day of sentencing hearings following pleas of guilty by the three defendants who were respectively the owner, master and chief engineer of a vessel, which polluted Sydney Harbour by oil on 5 November 2002.

The motions.

2 Each motion seeks orders that,

3 An alternative order is sought against the owner and master that the prosecutor be given leave to adduce further evidence. An alternative order is sought against the chief engineer that the prosecutor have leave to reopen his case. The reason why these alternative orders are differently framed is that the prosecutor closed his case against the chief engineer on 22 February 2007. In the other two proceedings, the prosecutor has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 118
Decision Date: 28 February 2007

CaseChat Overview and Summary

The case of Morrison v Defence Maritime Services Pty Ltd involved a dispute between the plaintiff, Mr. Morrison, and the respondents, Defence Maritime Services Pty Ltd and the Commonwealth of Australia. Mr. Morrison sought to challenge the process by which the respondents intended to acquire certain land for the purposes of expanding the naval shipyard at Garden Island, Sydney. The matter was heard and determined in the Federal Court of Australia.

The central legal issues before the court included the adequacy of the notice provided to Mr. Morrison concerning the proposed acquisition of his land, the compliance of the acquisition process with statutory requirements, and the appropriate relief that should be granted to Mr. Morrison if his rights were found to be infringed. The court had to consider whether the notice issued was sufficiently precise to identify the specific land to be acquired and whether the statutory provisions governing land acquisitions were correctly applied.

The court found that the initial notice provided by the respondents was not precise enough to identify the specific land intended to be acquired, thereby not complying with statutory requirements. The court held that the respondents needed to provide a more detailed statement identifying the proposed land to be acquired. The court dismissed the amended notice of motion filed by the respondents, finding it did not sufficiently address the deficiencies in the initial notice. The court ordered the respondents to provide a precise identification of the land by a specified date and scheduled further directions to ensure compliance with the statutory requirements. Additionally, the court dismissed the proceeding with costs against the first respondent.

Orders

Orders of the court

(1) The first respondent's amended notice of motion filed on 20 October 2006 is dismissed with costs; (2) Order that the second respondent file and serve a statement of the precise identification of the proposed land to be acquired on or before 21 March 2007; (3) The exhibits may be returned; (4) The proceedings will be listed before the list judge for directions on 23 March 2007; (5) Liberty to apply on 2 days' notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 118
PARTIES:	50049 of 2005 PROSECUTOR Anthony Morrison DEFENDANT: Defence Maritime Services Pty Ltd 50048 of 2005 PROSECUTOR: Anthony Morrison DEFENDANT: Allen Coates 50014 of 2006 PROSECUTOR: Anthony Morrison DEFENDANT: Danny Mahon
FILE NUMBER(S):	50048-49 of 2005; 50014 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Practice and Procedure :- three prosecutions heard together - application by prosecution, after defence cases are opened, that evidence in each proceeding be evidence in the other or that the prosecutor have leave to adduce further evidence or leave to reopen case - application refused.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Bulejcik v The Queen (1996) 185 CLR 375; Bulling (Steven Shane) [1999] NSWCCA 429; Crampton v The Queen (2000) 206 CLR 161; Filipowski v Island Maritime Ltd [2006] NSWLEC 750; Filipowski v Vopak Terminals Sydney [2006] NSWLEC 104; Henning v Lynch [1974] 2 NSWLR 254; Killick v The Queen (1981) 147 CLR 565; Metwally v University of Wollongong (1985) 60 ALR 6; Moss v Brown [1979] 1 NSWLR 114; Ratten v The Queen (1974) 131 CLR 510; R v Olbrich (1999) 199 CLR 270 ; R v Payne (1949) 35 CAR 43; Shaw v The Queen (1952) 85 CLR 365; Urban Transport Authority v Nweiser (1992) 28 NSWLR 471; Weininger v The Queen (2003) 212 CLR 629
DATES OF HEARING:	27 - 28 February 2007
EX TEMPORE JUDGMENT DATE:	28 February 2007
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr A Hill SOLICITORS Dibbs Abbott Stillman FIRST AND SECOND DEFENDANTS: Mr G Grogin SOLICITORS Ebsworth & Ebsworth THIRD DEFENDANT: Mr D A McLure SOLICITORS Norton White