Land and Environment Court
of New South Wales
CITATION:
Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [1999] NSWLEC 230
PARTIES
No 50006 of 1998
DEFENDANT
PROSECUTOR
Morrison
PeacockNo 50007 of 1998
DEFENDANT
PROSECUTOR
Morrison
Roslyndale Shipping Company Pty Ltd
NUMBER:
50006 of 1998 and 50007 of 1998
CORAM:
Pearlman J
KEY ISSUES:
Evidence :- admissibility of further evidence
LEGISLATION CITED:
Marine Pollution Act 1987
DATES OF HEARING:
05/20/1999
EX TEMPORE JUDGMENT DATE:
05/20/1999
LEGAL REPRESENTATIVES:
PROSECUTOR
Mr A L Hill (Barrister)SOLICITORS
Abbott ToutDEFENDANTS
SOLICITORS
Mr B W Larkin (Barrister)
Norton Smith & Co
JUDGMENT:
IN THE LAND AND 50006 of 1998 and 50007 of 1998
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 20 May 1999
No 50006 of 1998
- Prosecutor
- Defendant
No 50007 of 1998
- Prosecutor
- Defendant
1. The issue before me is whether the second affidavit of Mr Burge, which was dated 3 May 1999, may be read over the defence’s objection.
2. Both parties rely on R v O’Neill (1979) 2 NSWLR 582 at p 588 where Moffitt ACJ makes the following statement:
Where there are depositions and these are tendered before the judge and admitted, he is entitled to determine the nature of the offence by reference to the depositions. Where the accused disputes the facts, the appropriate course is for the accused to give evidence on oath and for the Crown to call before the judge any contrary evidence, except so far as he properly has before him admissions of the accused or evidence given on some other occasion ...
3. The position is this. The prosecutor’s case was the subject of evidence which was filed and served and has already been dealt with. In response to the prosecutor’s case, the defendants raised a defence under s 8(2)(b) of the Marine Pollution Act 1987 and in support of that defence, they filed and served, in April and in July, five affidavits.
4. When the case came on for hearing, the defence filed and served a further three affidavits. At least two of those three affidavits, those of Mr Peacock and Mr Roberts, both sworn on 8 December 1998, expressly refer to a first affidavit of Mr Burge sworn on 3 September 1998.
5. It seems to me, therefore, that what Mr Larkin submits is correct. The prosecution has filed and served evidence to make out a case under s 8(1). The defendants have raised a defence under s 8(2)(b) and they have filed and served a number of affidavits, admittedly not exactly in accordance with the directions given by the Court as to the filing of affidavits. In response, Mr Burge’s first affidavit was filed and served and in reply to that, three further affidavits were filed by the defendant on 8 December 1998. It seems to me that the appropriate course now is to regard the evidence as closed and the affidavit of Mr Burge of 3 May 1999 should not be read. I so direct.
- AGLC
- Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [1999] NSWLEC 230
- Case
- [1999] NSWLEC 230
- Decision Date
CaseChat Overview and Summary
The central legal issue the court needed to decide was whether the second affidavit of Mr Burge, dated 3 May 1999, should be admitted as evidence despite the defence’s objections. The defendants argued that this affidavit should not be considered because it was submitted outside the stipulated deadlines and procedural guidelines set by the court. The court had to determine if this late evidence should be allowed, considering the existing evidence and the procedural rules of the court.
In addressing the issue, Justice Pearlman noted that the defendants had raised a defence and filed several affidavits in support of it. The defendants’ affidavits, particularly those sworn by Mr Peacock and Mr Roberts, referenced an earlier affidavit by Mr Burge, which had already been part of the case. The court considered the procedural context, including the timing and nature of the submissions. Justice Pearlman concluded that the appropriate course of action was to regard the evidence as closed, thereby disallowing the admission of Mr Burge’s second affidavit dated 3 May 1999. The court issued a directive to this effect, ensuring that the trial would proceed based on the previously admitted evidence.
No further orders were noted beyond the directive to exclude the second affidavit of Mr Burge from the evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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