WaterNSW v Harris

[2018] NSWLEC 188

Land and Environment Court

New South Wales

Medium Neutral Citation:

WaterNSW v Harris [2018] NSWLEC 188

Hearing dates:

15 November 2018

Date of orders:

15 November 2018

Decision date:

15 November 2018

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [7]

Catchwords:

CRIMINAL PROCEDURE — Trial — Application to vacate hearing dates — Prosecutor failed to prepare expert material in time for the trial — Defendant agrees to vacation of the hearing dates — Whether appropriate to vacate

Legislation Cited:

Criminal Procedure Act 1986 (NSW) ss 247I, 247J

Water Management Act 2000 (NSW) ss 60A, 91G

Texts Cited:

Land and Environment Court Practice Note – Class 5 Proceedings

Category:

Principal judgment

Parties:

In proceedings 2018/00073924; 2018/00073936 WaterNSW (Prosecutor)
Peter Harris (Defendant)

In proceedings 2018/00073940; 2018/00073947
WaterNSW (Prosecutor)
Jane Harris (Defendant)

Representation:

Counsel:
J Higby, solicitor (Prosecutor)
M R Elliott SC with C R Ireland (Defendants)

Solicitors:
Norton Rose Fulbright Australia (Prosecutor)
Horton Rhodes Legal Pty Ltd (Defendants)

File Number(s):

2018/00073924; 2018/00073936; 2018/00073940; 2018/00073947

EX TEMPORE Judgment

1. Before the Court is a notice of motion in relation to four Class 5 summonses brought by WaterNSW (‘prosecutor’), two in respect of each of the two defendants, Peter Harris and Jane Harris (‘defendants’). Each defendant is charged with an offence against s 60A and s 91G(2) of the Water Management Act 2000 (NSW) (‘WM Act’).

2. The matter was set down for hearing for five days commencing next Monday. The hearing date was allocated some significant time ago. The matter came before me for pre-trial directions on 2 November 2018. On that occasion, I was informed that the prosecutor was awaiting and intending to rely upon a report of an expert in relation to matters concerning what is known as “discharge measure uncertainty” in relation to certain flow rates. The offences under the WM Act with which the defendants are charged relate to the taking of water impermissibly because of the flow rates at the time when the water was allegedly taken. The material is therefore clearly of significance in the case.

3. Today I have heard submissions from Mr M R Elliott of senior counsel, who appears with Mr C R Ireland of counsel for the defendants, and Mr J Higby, solicitor, who appears for the prosecutor. I have been informed, as I was forewarned yesterday evening by way of email to chambers, that the parties had agreed to orders that the hearing dates next week be vacated. In response to this communication the parties were informed that, in accordance with the Court’s Practice Note – Class 5 Proceedings, the Court requires a request for the vacation of hearing dates to be by way of notice of motion filed with affidavit evidence in relation to the application. It follows, for obvious and oft-quoted reasons, that the Court is most reluctant to vacate hearing dates, even by consent, particularly so close to the hearing.

4. In relation to a criminal prosecution such as the present, I am particularly concerned that the defendants are not put to the inconvenience of having the hearing of serious matters otherwise properly brought against them delayed. However, I am informed by Mr Elliott that, in the circumstances which I shall note below, the defendants are in fact desirous of the vacation of the dates.

5. The defendants’ acceptance relates to the fact, about which I am informed by Mr Higby and with which Mr Elliott agrees, that the expert report has raised matters of greater complexity than had been earlier anticipated with the consequence that it has taken some longer period of time to prepare and, importantly, it appears that there is a prospect that when the report is completed it will lead to a shortening of the trial. I make no further comment in relation to that but I note that the position appears to be that the expert report may be favourable, one way or another, to the defendants. At the very least, it may shorten the matter.

6. In the circumstances, and with some obvious reluctance which I have expressed to the legal representatives, I will make orders in accordance with those sought in the prosecutor’s notice of motion. Those orders generally reflect short minutes prepared and agreed by the parties.

Orders

7. I make the following orders:

1. Leave is granted to the prosecutor to file its notice of motion dated 15 November 2018 in Court.

2. The trial scheduled for 19 to 23 November 2018 in each of proceedings 2018/00073924; 2018/00073936; 2018/00073940; and 2018/00073947 ('Proceedings') is vacated.

3. The prosecutor is to serve any expert evidence upon which it proposes to rely in the Proceedings by 21 November 2018.

4. Pursuant to section 247I of the Criminal Procedure Act 1986 (NSW), the prosecutor is granted leave to file and serve amended notices under section 247J in the Proceedings by 25 January 2019.

5. The Proceedings be listed for further directions on Friday, 8 February 2019.

6. The parties are granted leave to approach the Registrar for allocation of hearing dates for a duration of five days.

7. Liberty to restore on two days' notice.

**********

Decision last updated: 08 September 2020