Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi

Introduction

1. On 26 July 2023, Georges River Council (the prosecutor) commenced six Class 5 proceedings against RNA Building Solutions Pty Ltd (RNA Building) (proceedings 2023/237804, 2023/237805 and 2023/237806) and Mr Ahmad El Saadi (Mr El Saadi) (proceedings 2023/237812, 2023/237813 and 2023/237814) (together, the proceedings and the defendants) concerning six offences contrary to ss 4.2(1)(b) and 9.50(3A) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In summary, the charges concern the demolition of a dwelling, excavation of the land and the erection or construction of a dwelling carried out otherwise than in accordance with development consent at 34 Beach Street, Blakehurst NSW 2221.
2. All six proceedings are listed for hearing on sentence on 9 September 2024 following the defendants' entry of guilty pleas to all charges.
3. The defendants have now applied for the sentencing hearing to be vacated in all six proceedings. They refer, in particular, to a change in legal representation, and the need for the newly appointed solicitors to review documentation, brief counsel, issue subpoenas to produce, brief experts, determine if the defendants should traverse any of the pleas in the six matters, and undertake other preparation for a sentencing hearing.
4. On 27 August 2024, RNA Building filed notices of motion in proceedings 2023/237804, 2023/237805 and 2023/237806 seeking the following orders: 1. Vacate the hearing in this proceeding and the associated proceedings against the defendant proceedings No 2023/237804, 2023/237805, 2023/237806 listed on 9 September 2024. 2. Vacate the hearing in the associated proceedings against Ahmad El Saadi No 2023/237812, 2023/237813 and 2023/237814 listed on 9 September 2024. 3. The costs wasted by the vacation of the hearing be reserved. 4. The costs of this notice of motion be reserved. 5. Such other orders as the Court sees fit.
5. On the same day, Mr El Saadi filed a notice of motion in proceedings 2023/237812 seeking the following orders: 1. Vacate the hearing in this proceeding and the associated proceedings against the defendant, proceedings No 2023/237812, 2023/237813 and 2023/237814 listed on 9 September 2024. 2. The costs wasted by the vacation of the hearing be vacated. 3. The costs of this motion be reserved. 4. Any other orders as the Court sees fit.
6. The notices of motion were heard before me on 29 August 2024.
7. At the hearing on 29 August 2024, the Court granted Mr Patakas, contracted solicitor for the defendants, leave to file amended notices of motion.
8. In proceedings 2023/237804, the amended notice of motion seeks the following orders: 1. Vacate the hearing in this proceeding and the associated proceedings against the defendant proceedings Nos 2023/237804, 2023/237805, 2023/237806 listed on 9 September 2024. 2. Vacate the hearing in the associated proceedings against Ahmad El Saadi No 2023/237812, 2023/237813 and 2023/237814 listed on 9 September 2024. 3. The costs wasted by the vacation of the hearing be reserved. 4. The costs of this notice of motion be reserved. 4A. The court make orders for further conduct of the matters as set out in annexure A to this notice of motion. 5. Such other orders as the Court sees fit.
9. In proceedings 2023/237812, the amended notice of motion seeks the following orders: 1. Vacate the hearing in this proceeding and the associated proceedings against the defendant, proceedings Nos 2023/237812, 2023/237813 and 2023/237814 listed on 9 September 2024. 2. The costs wasted by the vacation of the hearing be vacated. 3. The costs of this motion be reserved. 4.The court make orders for further conduct of the matters as set out in annexure A to this notice of motion. 5. Any other orders as the Court sees fit.
10. In Annexure A to both notices of motion, the defendants seek the following orders: 1. On or before 18 September 2024 the defendant issue subpoena to produce documents to be made returnable on a date allocated by the Registry. 2. On or before 16 October 2024, the Defendant is to serve its response to the Prosecutor's proposed facts and to notify the Prosecutor if it wishes to Traverse any plea. 3. On or before 23 October 2024 the Defendant file and serve any notice of motion to Traverse any plea together with all affidavits in support to be made returnable on 30 October 2024. 4. These matters be listed for return of any notice of motion filed pursuant to order 3 and for further directions on 30 October 2024. 5. The parties have liberty to restore on three working days' notice.
11. In its written submissions and initially at the hearing, the prosecutor opposed the orders sought by the defendants in relation to the vacation of the sentencing hearing. However, at the hearing, after hearing the defendant's submissions, the prosecutor accepted that it is subject to a requirement to be fair to the accused and to ensure the administration of justice, and made some submissions in support of vacating the sentencing hearing. The prosecutor also contended that the estimate of 1 day for the sentencing hearing is no longer suitable, and that a second day will be necessary.
12. At the hearing on 29 August 2024, the prosecutor was represented by Mr Coffey of counsel, and the defendants were represented by Mr Ardino, solicitor, Tabar & Associates, and Mr Patakas who told the Court that he has his "own firm" and that Mr Ardino and himself "were both contacted by the defendant to ask us to act in the matter ... I agreed with Mr Ardino that I would assist him by consulting to his firm in respect of this notice of motion. So I'm effectively contracted to his firm".

Procedural history

1. The following procedural history is based on the Court file and the chronology provided by the prosecutor in its written submissions.
2. By six summonses filed on 26 July 2023, the prosecutor commenced proceedings against RNA Building and Mr El Saadi.
3. On 6 September 2023, Mr Dominic Carbone of Sydney Law Practice Pty Limited (Sydney Law Practice) filed a notice of appearance on behalf of both defendants in all six proceedings.
4. On 8 September 2023, at the first directions hearing, Mr Coffey appeared for the prosecutor and Mr Carbone appeared for the defendants. Justice Moore as list judge adjourned the proceedings to 6 October 2023 at which point the defendants were to enter pleas on the basis that new solicitors had been engaged.
5. On 6 October 2023, Moore J as list judge adjourned the proceedings to 24 November 2023, and the defendants did not enter pleas on the basis that they had engaged an expert, and an adjournment would allow the expert to provide advice.
6. On 24 November 2023, Mr Zorzetto appeared for the prosecutor and Mr Ardino appeared for the defendants before me as list judge. I adjourned the proceedings to 14 December 2023 to allow the defendants to obtain material from an architectural audit expert and to receive further expert material from the prosecutor.
7. On 15 December 2023, Mr Coffey appeared for the prosecutor and Mr Carbone for the defendants before Duggan J as list judge. On that occasion, Mr El Saadi pleaded guilty in proceedings 2023/237813, and the defendants pleaded not guilty in the remaining five proceedings. Timetabling orders were also made, including an order that the defendants give a notice of defence response by 22 March 2024. The defendants did not comply with the order made by Duggan J on 15 December 2024 to give a notice of defence by 22 March 2024.
8. On 5 April 2024, the proceedings were again listed before me as list judge for mention. On that occasion, Ms Wilson appeared for the prosecutor and Mr Zhou of Sydney Law Practice for the defendants. The Court made timetabling orders, including an order that the defendants give notice of the defence response in accordance with s 247F of the Criminal Procedure Act 1986 (NSW) (CPA) by 19 April 2024. The defendants did not comply with the order made by me on 5 April 2024 to give notice of the defence response by 19 April 2024.
9. On 1 May 2024, Pepper J adjourned the proceedings to 10 May 2024 for directions.
10. On 10 May 2024, Mr Coffey appeared for the prosecutor, and Mr Fozzard of counsel appeared for the defendants before Duggan J as list judge. On that occasion, RNA Building entered guilty pleas in proceedings 2023/237804, 2023/237805, 2023/237806, and Mr El Saadi entered guilty pleas in proceedings 2023/237812 and 2023/237814. On that occasion, Duggan J made case management orders which included at order 6 that on or before 12 June 2024 the defendants serve their response to the prosecutor's proposed facts.
11. On 15 May 2024, the prosecutor filed amended summonses in all six proceedings pursuant to the grant of leave by Duggan J on 10 May 2024.
12. On 3 June 2024, the prosecutor served proposed facts and orders.
13. The defendants did not comply with the order to serve their response to the prosecutor's proposed facts by 12 June 2024, and on 9 July 2024, the prosecutor sought to relist the matter and bring the defendants' slippage to the Court's attention.
14. On 12 July 2024, Robson J as list judge made orders in chambers, including: 1. On or before 16 July 2024, the Defendant is to serve its response to the Prosecutor's proposed facts and the Prosecutor's proposed orders. 2. On or before 24 July 2024, the parties are to file and serve agreed facts. 3. On or before 7 August the Prosecutor is to file and serve any further evidence on sentence.
15. By 16 July 2024, the defendants had not filed a response to the prosecutor's proposed facts and proposed orders.
16. On 17 July 2024, Pepper J as list judge relisted the proceedings for 26 July 2024 in circumstances in which the prosecutor sought to vary the timetable, and to bring the defendants' non-compliance with the orders made by Robson J on 12 July 2024 to the attention of the Court.
17. On 26 July 2024, Pepper J as list judge made orders, including: 2. Order 6 to 11 of the Orders made on 10 May 2024 are varied to read as follows: 6. On or before 30 July 2024, the Defendant is to serve its response to the Prosecutor's proposed facts and its response to the Prosecutor's proposed orders in connection with the offence that the Prosecutor will be seeking the Court to make. 7. On or before 2 August 2024, the parties are to file and serve agreed facts.
18. The defendants did not comply with the timetable the subject of the orders of Pepper J made on 26 July 2024.
19. On 2 August 2024, the proceedings came before me as list judge. Mr Coffey appeared for the prosecutor and Mr Zhou appeared for the defendants. Mr Zhou informed the Court that Sydney Law Practice intended to file notices of ceasing to act in all six proceedings. On that occasion, I made the following orders: 1. The solicitor on the record for the defendant to file and serve a notice of withdrawal, containing contact information for the defendant, by 4pm on Friday, 2 August 2024. 2. Pursuant to s 246(1)(a) of the Criminal Procedure Act 1986, Mr Ahmad El Saadi to personally attend and appear before a Judge of the NSW Land and Environment Court on Friday, 9 August 2024 at 9.30am. 3. The proceedings are listed for directions on Friday, 9 August 2024 at 9:30am. 4. The solicitor on the record for the defendant is to provide a copy of these orders to the defendant by 4pm on Friday, 2 August 2024
20. On 2 August 2024, Mr Dominic Carbone of Sydney Law Practice filed notices of ceasing to act in proceedings 2023/237804 and 2023/237812. On 8 August 2024, Mr Carbone filed notices of ceasing to act in proceedings 2023/237805 and 2023/237806.
21. On 9 August 2024, the proceedings were again listed before me as list judge. Mr Ardino, solicitor, announced his appearance for the defendants although no notice of appearance had been filed. Mr Ardino informed the Court that the defendants might make an application to vacate the sentencing hearing set down for 9 September 2024, or an application to traverse the pleas that had been entered.
22. On 9 August 2024, I made the following orders in each of the proceedings against RNA Building and Mr El Saadi: The Court notes that the prosecutor served proposed Statement of Facts and proposed Part 8.3 Orders on 3 June 2024 and as at 9 August 2024 the defendants had not provided a response in relation to whether those facts and orders are agreed or opposed. The Court makes the following orders: 1. The orders made on 10 May 2024, as varied on 12 July and 26 July 2024, are vacated. 2. The proceeding remains listed for hearing on sentence on Monday, 9 September 2024 with an estimate of 1 day (the proceeding). 3. Unless an application is filed, supported by an affidavit, seeking leave to vacate the proceeding the Court will proceed to hear the proceeding in accordance with the proposed Statement of Facts and proposed Part 8.3 Orders. 4. The defendant to file and serve any evidence, limited to mitigation, for the hearing on sentence on or before 4pm on Friday, 16 August 2024. 5. The prosecutor is to file and serve any evidence in reply, limited to mitigation, on or before Friday, 30 August 2024. 6. The prosecutor to file and serve any submissions on sentence on or before 4pm on Wednesday, 4 September 2024. 7. The defendant to file and serve any evidence on sentence on or before 4pm on Thursday, 5 September 2024. 8. Any application to traverse a plea of guilty to be filed and served by 4pm on Tuesday, 13 August 2024. 9. Any evidence in support of an application to traverse a plea of guilty to be filed and served by 4pm on Thursday, 15 August 2024. 10. If the defendant files an application to traverse a plea of guilty or an application to vacate the hearing on sentence set down for 9 September 2024 is filed, the proceeding is listed for case management and further directions on Friday, 16 August 2024. 11. If an application to traverse a plea of guilty or an application to vacate the hearing on sentence set down for 9 September 2024 is filed, the prosecutor write to Court Listings to have the proceeding listed on Friday, 16 August 2024. 12. The parties have liberty to restore on 24 hours notice.
23. On 16 August 2024, the prosecutor emailed the Court requesting that the proceedings be listed for a case management conference, and set out the following concerns: 1. The failure of Mr Ardino to file and serve a Notice of Appearance to confirm he acts for the defendants following his appearance on 9 August 2024, despite requests; 2. The failure of the defendants to file and serve evidence in mitigation by 4pm today (or at all, as at the time of sending this communication) in accordance with the orders of Justice Pritchard on 9 August 2024; 3. The likelihood that the current sentencing date of 1 day on 9 September 2024 will be insufficient and a further day will be required in circumstances where the defendants have foreshadowed an application to traverse their guilty pleas and / or to vacate the sentencing date, neither of which have been filed or served in accordance with Justice Pritchard's orders of 9 August 2024 (or at all, as at the time of sending this communication), in the context of the defendants' repeated non-compliances with the Court's orders since 10 May 2024
24. On 22 August 2024, the proceedings were listed before me as duty judge for a case management conference. On that occasion, I made the following orders: 1. Mr Ardino to file a notice of appearance confirming he acts for the defendants by 4pm on Friday 23 August 2024. 2. The defendants to file any motion to vacate the hearing set down on 9 September 2024 and any application to traverse the pleas entered into by the defendants with evidence and written submissions in support by 4pm Monday 26 August 2024. 3. The Prosecutor to file any evidence by 4pm Wednesday, 28 August 2024. 4. The hearing of the motion to vacate or traversal application is listed before the duty judge on Thursday, 29 August 2024 at 4:15pm.
25. On 23 August 2024, Mr Carbone filed notices of ceasing to act in proceedings 2023/237813 and 2023/237814.
26. On Monday, 26 August 2024, my associate emailed the parties as follows: 1. Mr Ardino to file a notice of appearance confirming he acts for the defendants by 4pm on Friday 23 August 2024. 2. The defendants to file any motion to vacate the hearing set down on 9 September 2024 and any application to traverse the pleas entered into by the defendants with evidence and written submissions in support by 4pm Monday 26 August 2024. As of 5pm on Monday, 26 August 2024, Mr Ardino has only filed a notice of appearance in proceeding 2023/237812 and the defendants have not filed any motion to vacate the hearing or any application to traverse the pleas. As a matter of urgency, can the defendants please advise why they have not complied with the above orders and when they will comply with them.
27. On Tuesday, 27 August 2024, Mr Ardino replied to my chambers' email of 26 August 2024 as follows: Thank you for your email received this afternoon and we now advise as follows:- 1. I was only able to file a Notice of Appearance in one proceeding and not in any of the others as the portal did not allow us to do so. I will try again today. 2. I have served the Solicitors for the Prosecution with an unsealed copy of two proposed Notices of Motion in each of the proceedings against my client as an individual and his company seeking to vacate the hearing on 9 September 2024 together with Short Minutes of Orders with respect to the direction sought for the further conduct of the matters. I attach a copy of my email to the Solicitors for the Prosecution enclosing each Motion for your attention. 3. The notice of motion will be filed by about noon when an affidavit in support is finalised this morning. 4. I met the principal of our clients' previous lawyers Sydney Law Practice yesterday whereupon we agreed on a Tri partite Agreement in respect of their outstanding costs and late yesterday received a drop box of their files in these matters. 5. We shall discuss the matter further with the Solicitors for the Prosecution around noon today to ascertain their position in respect of the orders that affect their client following filing and service of the above.
28. On Tuesday, 27 August 2024, Mr Ardino filed notices of appearance in proceedings 2023/237804, 2023/237805, 2023/237806, 2023/237813 and 2023/237814.
29. On Tuesday, 27 August 2024, Mr Ardino emailed to my chambers and the prosecutor an unsworn affidavit of Mr Rocco Michael Ardino dated 26 August 2024. In his email, Mr Ardino stated: We enclose copy of unsworn Affidavit of the writer for your attention. This Affidavit together with further annexures will now be sworn and filed together with the two unsealed copy of the motions which have already been sent to you. We apologise for the delay in providing you with these documents and any inconvenience. The Submissions in support of the Motion unfortunately will not be finalised until tomorrow. Please advise whether you will need to vacate the hearing on 29 August 2024 and list the matter on a later date due to the delay.
30. On Tuesday, 27 August 2024, the defendants filed notices of motion in proceedings 2023/237804, 2023/237805, 2023/237806 and 2023/237812 and the sworn affidavit of Mr Rocco Michael Ardino dated 26 August 2024.
31. On Wednesday, 28 August 2024, the prosecutor filed an affidavit of Ms Jane Elizabeth Hewitt dated 28 August 2024, and submissions opposing the defendants' application to vacate the sentencing hearing on 9 September 2024.
32. On Thursday, 29 August 2024, the defendants filed amended notices of motion in proceedings 2023/237804 and 2023/237812. The proposed orders in proceedings 2023/237804 refer to proceedings 2023/237805 and 2023/237806, and the proposed orders in proceedings 2023/237812 refer to proceedings 2023/237813 and 2023/237814.

Relevant legislation

1. Section 40 of the CPA provides as follows in relation to adjournments in criminal proceedings: 40 Adjournments generally (1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. (2) An adjournment may be in such terms as the court thinks fit. (3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment. (4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.

Evidence

1. At the hearing of the defendants' motions on Thursday, 29 August 2024, the defendants read the affidavit of Mr Rocco Michael Ardino, solicitor for the defendants, dated 26 August 2024.
2. Mr Ardino deposed that he was first contacted by Mr El Saadi late on 8 August 2024, and appeared for both Mr El Saadi and RNA Building on 9 August 2024 "only for the purpose of informing the court of the defendants' request Taber & Associates act for them, the defendant's consideration of traversing one or more of their pleas … and the likelihood that the hearing on 9 September 2024 would need to be vacated".
3. Mr Ardino said that he was informed by Mr El Saadi that Sydney Law Practice had acted for Mr El Saadi and RNA Building since early 2024, and that on 8 August 2024, Mr El Saadi received an email from HWL Ebsworth (HWL) which advised on 2 August 2024 that Sydney Law Practice had filed a notice of ceasing to act. Mr Ardino says that Mr El Saadi "was not previously notified by SLP … of its intention to cease acting for him and RNA". Mr Ardino also said that on 7 August 2024, Sydney Law Practice convened a conference with Mr El Saadi and Mr Fozzard of counsel "to discuss the proceedings including the outstanding reply to the Prosecutor's statement of facts and possible traversing of one of more of his or RNA's pleas".
4. Mr Ardino said that during the week commencing 12 August 2024, he received an email from HWL with access to "several documents filed in these proceedings and Telstra phone records". He also said that he "caused a request to [Sydney Law Practice] for their files in the six matters", and was advised by Mr Carbone, principal of Sydney Law Practice, that he "was overseas on leave to return on 19 August 2024; was agreeable to provide SLP's files subject to a claim of a general lien … and a tri partite deed; and would upon his return address the request for SLP's files". It appears that the tri-partite deed was partially executed at about 3:58pm on 26 August 2024, and that Mr Ardino subsequently received Sydney Law Practices' files.
5. Mr Ardino deposed that the following matters need to be undertaken, and cannot be undertaken, in the time available before the scheduled sentencing hearing on 9 September 2024: 1. review of documents provided by HWL on 10 August 2024 which comprise "140 documents of some 3,000 pages" and review of the Sydney Law Practice files received on 26 August 2024 which comprise "about 270 documents [estimated to be] in excess of 5,000 pages]; 2. brief counsel; 3. issue subpoenas to produce "on at least three third parties"; 4. brief a "town planner and another construction expert" regarding the works undertaken on the land and the works proposed in the Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW) orders (the Part 8.3 Orders); 5. determine whether the defendants should traverse any of the pleas and reply to the prosecutor's proposed statement of facts; and 6. undertake preparation for the hearing such as serving affidavit evidence and preparing submissions.
6. Based on the above circumstances, Mr Ardino said that: 1. the sentencing hearing on 9 September 2024 "needs to be vacated to allow the defendants' new solicitors to carry out the above work"; 2. "Tabar & Associates have not agreed to act for the defendants at the hearing on 9 September 2024 given the inability to undertake the above by that date"; and 3. the defendants seek an amended timetable.
7. The defendants also tendered an email from Mr Ardino to Ms Hewitt, solicitor for the prosecutor dated 28 August 2024.
8. At the hearing of the defendants' motions on 29 August 2024, the prosecutor read the affidavit of Ms Jane Elizabeth Hewitt dated 28 August 2024.
9. Ms Hewitt deposed to the procedural history of the matters, noting particularly communications made since 9 August 2024 by the prosecutor's legal representation to Mr Ardino. In relation to the sentence hearing date of 9 September 2024, Ms Hewitt deposed to six witnesses the prosecutor intends to subpoena to give evidence in circumstances where the defendants had not filed a response to the proposed statement of agreed facts, Part 8.3 Orders, or any indication of what evidence was in dispute.
10. Ms Hewitt said, in relation to statements made by Mr Ardino in his affidavit dated 26 August 2024 concerning expert evidence, that the defendants had previously sought and obtained town planning advice, and that adjournments had previously been made to allow for the defendants to receive an expert report and an "audit" in the form of the "As Built Audit Report of Finesse Design Practice".

Defendants' submissions

1. The defendant did not comply with the order made by me on 22 August 2024 to file written submissions on 27 August 2024. At the hearing on 29 August 2024, I made an order that the defendants file written submissions by midday on 30 August 2024. I also requested the parties to provide the Court with proposed short minutes of order in relation to how the matter should proceed if I vacated the sentencing hearing.
2. On 29 August 2024, Mr Patakas, "solicitor consulting to Tabar & Associates", appeared for the defendants and informed the Court that the defendants had been represented by Sydney Law Practice "for some time", and that the defendants had no notice of Sydney Law Practice's intention to cease to act. Mr Patakas said that the first time the defendants learnt Sydney Law Practice had ceased to act was on 8 August 2024.

Prosecutor's submissions

1. In written submissions filed on 28 August 2024, the prosecutor submitted that the defendants have "repeatedly suggested that they may also seek leave to withdraw the pleas of guilty." On 9 September 2023, the Court made orders for a hearing on sentence. The defendants' change of pleas followed the Court being informed that an "expert" had been retained to provide advice. Further, the legal representatives appearing for the prosecutor and the defendants on 10 May 2024 had confirmed an estimate of 1 day for the sentencing hearing. This estimate contemplated that the proceedings would proceed by way of a statement of agreed facts (SOAF). The orders made on 10 May 2024 required the prosecutor to serve a SOAF and to provide notice of the proposed orders to be sought under Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).
2. With a two-business day delay, the prosecutor complied with those orders. However, despite multiple communications sent by the solicitor for the prosecutor to the former solicitor for the defendants, and directly to the defendants, in addition to additional directions hearings involving variations to the timetable instigated at the request of the prosecutor, the defendants provided no response concerning the proposed SOAF or the proposed Part 8.3 Orders. The prosecutor also referred to the fact that on 9 August 2024, the Court ordered Mr Ardino to file and serve a notice of appearance. This did not occur. Further, the Court ordered that by 4pm on Tuesday, 13 August 2024, the defendants file and service any notice of motion seeking to vacate the sentencing hearing and/or to traverse any plea, and evidence in support. Again, this did not occur.
3. On 16 August 2024, the solicitor for the prosecutor wrote to the Court and requested the proceedings be relisted following the defendants' non-compliance, and also a concern about the length of the sentencing hearing set down for one day on 9 September 2024, and the need to locate witnesses.
4. On 22 August 2024, the proceedings were listed before me for a directions hearing. Again, Mr Ardino appeared for the defendants. I made further orders concerning the filing and service of notices of appearance and any application to vacate and/or traverse the pleas by 4pm on Monday, 26 August 2024. Those orders were not complied with. On 27 August 2024, the defendants filed notices of motion seeking to vacate the sentencing hearing to enable consideration of traversing the pleas. Again, this was not in accordance with the orders made by the Court on 9 and 22 August 2024.
5. In its written submissions filed on 28 August 2024, the prosecutor submitted that the defendants and/or their solicitors had not complied with the orders made on 9 August 2024 and 22 August 2024, and that the notices of motion, evidence in support and covering emails "proceed on the basis that the Court will simply vacate the hearing date because a new solicitor has been retained." Further, there was no evidence from the defendants and/or their solicitors explaining the period of non-compliance since 10 May 2024, the multiple appearances and variations to the timetable. Such evidence, it was submitted, would not prejudice a defendant and their right to silence in relation to the substantive issues in the proceedings. Further, the prosecutor submitted, Mr Ardino continued to advance a position that his engagement was presently limited to seeking to vacate the hearing date on 9 September 2024.
6. The prosecutor expressed concern that if the hearing were vacated, there could "be no comfort that the defendants will take steps to actively engage or comply with further court orders". The history of the proceedings demonstrated substantial non-compliance with Court orders without any explanation. The defendants had not filed any application or evidence concerning an application to traverse the plea. This was despite the orders of the Court contemplating that such an application would be heard and determined at the listing before me, as duty judge, on 29 August 2024.
7. During the course of the hearing on 29 August 2024 of the defendants' motions to vacate the sentencing hearing in all six proceedings, Mr Coffey submitted as follows: COFFEY: I do, as the prosecutor have in accordance with the DPP's guidelines, have a requirement to be fair to the accused and ensure the administration of justice isn't brought into disrepute. Could I raise a number of matters against my own client's interests in respect of why your Honour in these circumstances might be persuaded to vacate the hearing but list it for a further hearing, two or three day hearing - … … one of the advantages that would be … that there are solicitors on the record that are, with respect, ready, willing and able to assist the defendants. … the Court ought to place some weight on that because it would … have some unfairness to the accused in circumstances where there is roughly five business days or six business days before this hearing … and it may have that the impact of vacating the hearing … has the benefit that there is time for the defendants to consider the material, receive advice and potentially narrow the scope of the issues. That might actually mean that the hearing before the chief judge doesn't need to be more than one day. … What I would hope through an adjournment and the allocation of a new date would be that even if there are some disputed facts, the parties could agree on some facts, could also narrow any evidentiary or admissibility issues and we could have a proper response from the defendant concerning the pt 8.3 orders. … I do acknowledge, your Honour, with respect that I indicated the earlier‑‑ HER HONOUR: Your written submissions oppose the application. COFFEY: I do … and I acknowledge having heard some of the things that have been said today, I'm concerned that even the Court would be prejudiced because additional time will be taken up on the ninth, potentially one or two further days whereas maybe a vacation is what is required.

Subsequent submissions

1. At the conclusion of the hearing on 29 August 2024, I made directions that the defendants file written submissions in relation to their applications to vacate by 12pm on Friday, 30 August 2024, and the prosecutor file written submissions by 4pm on Friday, 30 August 2024.

Defendants' submissions

1. The defendants relied on the affidavit of Mr Ardino dated 26 August 2024, an email from Mr Ardino to Ms Hewitt, solicitor for the prosecutor, dated 28 August 2024, and an "Icare HBCF Certificate in relation to insurance for residential building work dated 25 September 2020 (the Icare Certificate of Insurance)". The defendants sought a vacation of the hearing for the reasons set out in Mr Ardino's affidavit summarised above at [46]-[51]. They also submitted that the delays in complying with orders of the Court since Sydney Law Practice ceased acting was due to having to engage new solicitors, Tabar & Associates, who needed to obtain Sydney Law Practice's files and obtain instructions from the defendants. They could not comply with the orders made on 9 and 22 August 2024 to file any application to traverse the pleas (and would be unable to do so before 9 September 2024), they needed to engage Tabar & Associates, did not obtain the Sydney Law Practice files until 26 August 2024, and they did not have "sufficient time due to their volume to ascertain the facts and documents".
2. Further, the defendants submitted that Tabar & Associates appeared for the defendants on their notices of motion to vacate the sentencing hearing only, and not in the matters generally because they were unable to undertake the tasks needed for the preparation of the sentencing hearing by 9 September 2024. Also, the prosecutor had served them with a further version of proposed facts with tracked changes on 21 August 2024.
3. The defendants relied on four civil authorities to "assist the court in the application of the same principals for consideration of the defendants' applications to vacate"; namely, Ghambir v Vision of IT Pty Ltd [1] ; Transpacific Pty Ltd v Prudential Annuity Retirement Insurance and Annuity Company and others (No 2) [2] ; Mackycorp Pty Ltd v Lismore City Council [3] and Aon Risk Services Australia Limited v Australian National University. [4]

Prosecutor's further submissions

1. In its further submissions, the prosecutor maintained the position that the defendants had not complied with the orders of the Court concerning the procedural aspects required to support their applications to vacate the sentencing hearing. However, the prosecutor accepted that the circumstances warrant the vacation of the hearing on 9 September 2024.
2. The prosecutor submitted that its evidence demonstrated that complete fairness has been afforded to the defendants, and that the prosecutor had complied with its prosecutorial duties and orders of the Court. No act of the prosecutor had caused any delay in the proceedings or impacted upon the defendants. In circumstances where neither solicitor presently acting for the defendants (Mr Ardino or Mr Patakas) had, by their own concession "a complete appreciation of the matter", the criticism about the amendment to the proposed facts into a single consolidated document for both defendants was without foundation. To contend that the prosecutor's conduct had contributed in any part was improper and not supported by any evidence.
3. The prosecutor further submitted that the iCare Certificate (which was not tendered on 29 August 2024) provided no assistance in relation to the application to vacate. In any event, the use that Court should make of the certificate had not been identified. Nor had the defendants properly explained the events after 10 May 2024 and the change in solicitor. Ordinarily, the Court should not accept an affidavit of a solicitor (Mr Ardino) providing evidence of this kind "on instruction". Further, the prosecutor submitted, the approach of Mr Ardino has been unusual. Mr Ardino continued to assert that his engagement was for a limited purposed connected with obtaining a vacation of the sentencing hearing date.
4. At the hearing of the defendants' motions, Mr Patakas, solicitor, appeared, instructed by Mr Ardino. Mr Patakas, who is from a different law practice indicated that he had been engaged by Mr Ardino to assist in the applications to vacate, and if the applications were granted he would "consider" whether he would "take the matter on". The prosecutor submitted that the proposed approach was unclear and provided "little comfort", referring to the uncertainty about legal representation and as to whether Mr Ardino may have capacity to take on the matters further than the present applications to vacate the sentencing hearing.
5. However, the prosecutor was concerned as to the potential results if the applications were not granted; that is, that the defendants might be unrepresented at a sentencing hearing or, alternatively, that their legal representatives might not have sufficient time to consider the material and properly advise. In all the circumstances set out in the limited evidence adduced by the defendants, this might give rise to an appeal, and the prosecutor has a duty to assist in ensuring that this does not transpire.
6. If the sentencing hearing proceeded on 9 September 2024, this would result in the following: 1. despite the pleas of guilty, the prosecutor would be required to call and adduce oral evidence from eight witnesses, and as indicated over the past few listings, the prosecutor contends that 1 day is not sufficient for this purpose; 2. at least 1 witness is not available on 9 September 2024 (or until after 2 October 2024); 3. the hearing would be required to proceed part heard to another date to be fixed; 4. the Court would be required to determine facts that otherwise might be the subject of some agreement or, at the very least, the issues that may not be in dispute might be narrowed. Currently there is no agreement; 5. despite orders requiring notice, the prosecutor has not been provided with any information, response or evidence concerning the proposed Part 8.3 Orders. The prosecutor might require an adjournment to consider or respond to any material, evidence or submissions advanced by the defendants at the sentencing hearing on 9 September 2024; and 6. the Court would very likely not to have any material in mitigation, or any meaningful material, from the defendants prior to 9 September 2024. This would include evidence from the defendants, character evidence and potentially evidence concerning the costs of compliance with the Part 8.3 Orders.
7. The prosecutor submitted that an adjournment would afford the defendants an opportunity to confirm legal representation. It would also provide comfort to the Court, and to the prosecutor, that the defendants properly understand the pleas of guilty and the proposed Part 8.3 Orders. There are many eminently qualified law firms in Sydney that specialise in criminal matters and/or planning and environmental law who are likely to have the experience and capacity to represent the defendants. Such information is available on the NSW Law Society website or by contacting the NSW Environment and Planning Law Association. There are also members of the NSW Bar Association who have experience and likely capacity to assist.
8. This would likely assist in narrowing the issues to be decided by the Court, reduce the imposition on Court time and resources, and also reduce the costs of the prosecutor in conducting a multiple day defended sentencing hearing (which costs would ultimately be paid by the defendants). Further, the prosecutor is not asserting any ongoing environmental harm that needs to be immediately corrected, and the proposed Part 8.3 Orders would respond to the unlawful overdevelopment. Development at the site has ceased since a stop work order was issued in 2022.

Adjournment of a sentencing hearing

1. Section 40 of the CPA gives the Court the power to adjourn criminal proceedings: Environment Protection Authority v Eveston [5] (Eveston) at [24] (Preston CJ of LEC). Whether or not an adjournment should be granted is a matter of discretion. The judge is not confined to the interests of the accused, but the interests of justice as well: R v Cox. [6] While the power to adjourn a matter is discretionary, it must not be exercised so as to work a manifest injustice on one party, for example, to deprive a party of a hearing, unless there is no other way to do substantial justice between the parties: Maxwell v Keun. [7]
2. For procedural fairness, a party must be given a reasonable opportunity to present his or her own case which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it: Director of Public Prosecutions (NSW) v Yeo. [8] In Nitiva v Director of Public Prosecutions, [9] the Court of Appeal (Sheller and Beazley JJA and Cole AJA), in the context of a claim of denial of procedural fairness by a refusal to adjourn criminal proceedings, observed at [64] as follows: … The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at 343 "…it is important to remember that the relevant duty of [the court] is to ensure that a party is given a reasonable opportunity to present his case". In our opinion, the claimant was not given that reasonable opportunity …
3. The appearance that justice has been done is particularly important in a criminal trial, but nonetheless some limitation is required to be placed upon the right of an accused to delay the trial to prepare their case: R v Alexandroia [10] (Alexandroia) at 290 (Hunt CJ at CL, Grove and Dunford JJ). Significantly, here, a trial judge is entitled to take into account the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition: Alexandroia at 291 (Hunt CJ at CL, Grove and Dunford JJ). The significance of this consideration has been reinforced by the enactment of the case management provisions in the CPA. [11]
4. Whilst conscious of: 1. the defendants' continued and substantial non-compliance with orders of the Court, including those made on 9 August 2024 and 22 August 2024, and in relation to the proposed SOAF and proposed Part 8.3 Orders; 2. the lack of any real transparency in relation to the circumstances in which Sydney Law Practice ceased to be instructed by the defendants and the delay in the provision of documents and files to Mr Ardino by Sydney Law Practice, and their review by Mr Ardino; 3. the delay on the part of Mr Ardino in briefing counsel, issuing subpoenas, briefing experts, determining whether the defendants should traverse any of the pleas, and preparing for the hearing on 9 September 2024; 4. the circumstances surrounding the appearance on 29 August 2024 of Mr Patakas "solicitor consulting to Tabar and Associates"; 5. the uncertainty surrounding the present legal representation of the defendants, and my lack of comfort that the defendants and their solicitors will now take steps to comply with orders of the Court; and 6. what I am satisfied to have been the prosecutor's compliance with its prosecutorial duties and the orders of the Court,
5. I accede to the defendants' applications to vacate the sentencing hearing on 9 September 2024 for the following reasons: 1. the prosecutor's warranted concerns if the applications were not granted, in particular that the defendants might not be represented at the sentencing hearing or that their legal representatives might not have sufficient time to consider the documents and files provided recently to them and properly advise the defendants; 2. the prosecutor's warranted concerns that if the sentencing hearing proceeded on 9 September 2024, a one day hearing would unlikely be sufficient and the hearing would then be part heard; 3. the possibility that some facts might be agreed and the issues in dispute narrowed; 4. the adjournment is for a "definite and limited period of time" and in accordance with the Court's Class 5 Practice Note and Eveston at [58] (Preston CJ of LEC), criminal proceedings will not be adjourned generally; 5. the very real possibility that the prosecution and the Court would not have been provided with any material, evidence or submissions relied upon by the defendants, in particular in relation to mitigation, and that the prosecutor might require an adjournment of the sentencing hearing on 9 September 2024 to consider or respond to any such material, evidence or submissions belatedly relied upon by the defendants at the sentencing hearing; and 6. that the prosecutor does not assert any ongoing environmental harm that needs immediately to be corrected, and that the interests of justice warrant an adjournment of the sentencing hearing on 9 September 2024.
6. In all the circumstances, I accept the prosecutor's submission that an adjournment would afford the defendants an opportunity to confirm legal representation, would likely assist in narrowing the issues to be decided by the Court, and would likely result in the Court, on sentence, having material in mitigation before it and the defendants having a reasonable opportunity to prepare the case against them.

Traversing a guilty plea

1. The onus lies upon the defendants to demonstrate that leave should be granted to traverse the pleas of guilty they have entered. [12] The test requires the defendants to establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [13] at [39] and White v R [14] (White) at [60]-[61] (Bell CJ, Button and N Adams JJ). In White, the Court of Criminal Appeal examined the test applied where an accused seeks leave to withdraw a guilty plea prior to conviction at [60]-[61]. That test, set out in White at [65] is whether the interests of justice require that course to be taken.
2. Having determined to vacate the sentencing hearing on 9 September 2024, I will leave any potential question of the traversal of pleas entered to be determined by the Court once any application is filed by the defendants together with supporting evidence.

Conclusion and orders

1. Each of the parties provided proposed short minutes of order following a vacation of the sentencing hearing on 9 September 2024. I have considered both versions, noting that there are not significant differences between them. In particular, the parties each proposed the preparation for a sentencing hearing in December 2024.
2. In proceedings 2023/237804, 2023/237805, 2023/237806, 2023/237812, 2023/237813 and 2023/237814, the Court makes the following orders: 1. The hearing on sentence on 9 September 2024 is vacated. 2. The hearing on sentence is listed for 3 days on 10, 11 and 12 December 2024. 3. On or before 11 September 2024, the defendants to issue any subpoena to produce documents to be made returnable on a date given by the Registry. 4. On or before 27 September 2024, the defendants to: 1. serve on the prosecutor's solicitor a response to the prosecutor's proposed Statement of Agreed Facts; 2. serve on the prosecutor's solicitor a response to the prosecutor's proposed orders under Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (Part 8.3 Orders); and 3. notify the prosecutor if they seek to traverse a plea of guilty in any of the proceedings. 1. On or before 15 October 2024, the defendants file and serve on the prosecutor's solicitor any lay or expert evidence to be relied on in relation to the Part 8.3 Orders. 2. On or before 4 October 2024, the defendants file and serve any application to traverse a plea of guilty and all evidence in support. 3. If any application to traverse a plea of guilty is filed and served by the defendants, the prosecutor write to the Court and request the notice of motion be listed at the next available opportunity before the Duty Judge. 4. On or before 11 October 2024, the parties file a Statement of Agreed Facts. 5. On or before 1 November 2024, the prosecutor file and serve any further evidence to be relied on in relation to facts in issue, penalty or the Part 8.3 Orders. 6. On or before 15 November 2024, the defendants file and serve: 1. any evidence to be relied on in relation to penalty; and 2. a list of objections to evidence proposed to be relied on by the prosecutor concerning any facts that are in issue. 1. On or before 22 November 2024, the defendants file and serve a list of objections to evidence proposed to be relied on by the prosecutor concerning any facts in issue. 2. On or before 22 November 2024, the prosecutor file and serve any written submissions concerning facts in issue, penalty or the Part 8.3 Orders. 3. On or before 29 November 2024, the defendants file and serve any written submissions concerning facts in issue, penalty or the Part 8.3 Orders. 4. On or before 3 December 2024, the parties file an agreed Court Book and Evidence Book electronically and with two hard copies; the Court Book to be in a different coloured folder to the Evidence Book, and all documents to be printed double-sided. 5. On or before 9 December 2024, the parties each provide a list of authorities and legislation intended to be relied on (with any unreported cases to be provided to the Court) to the hearing judge's associate. 6. On or before 9 December 2024, the parties provide to the hearing judge's associate a draft joint hearing timetable. 7. The proceedings are listed for a case management conference before the hearing judge at 9am on Tuesday, 29 October 2024. 8. The proceedings are listed for a pre-hearing mention before the hearing judge at 9am on Wednesday, 4 December 2024. 9. The parties have liberty to restore the proceedings on 2 days' notice.

Endnotes

1. [2023] NSWSC 905 (Dhanji J).
2. [2011] FCA 1215 (Stone J).
3. [2024] NSWLEC 1485 (Walsh C).
4. (2009) 239 CLR 175; [2009] HCA 27.
5. [2020] NSWLEC 178 at [24] (Preston CJ of LEC).
6. [1960] VR 665 approved in R v Barca (NSWCCA, 17 August 1978, unreported).
7. [1928] 1 KB 645; Walker v Walker [1967] 1 All ER 412; [1967] 1 WLR 237.
8. (2008) 188 A Crim R 82; [2008] NSWSC 953 at [52]-[57] (Johnson J).
9. [1999] NSWCA 332 at [64] (Sheller and Beazley JJA and Cole AJA).
10. (1995) 81 A Crim R 286 at 290 (Hunt CJ at CL, Grove and Dunford JJ); Jamal v Director of Public Prosecutions [2013] NSWCA 355 at [54] (Gleeson JA) (Meagher JA and Latham J agreeing).
11. Slotboom v R [2013] NSWCCA 18 at [36] (Johnson J) (Simpson J and Grove AJ agreeing).
12. R v Marchando (2000) 110 A Crim R 337 at 338; [2000] NSWCCA 8 (Simpson J) (Wood CJ of CL and Sully J agreeing); R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537; [2000] NSWCCA 216 at [16]-[23] (Spigelman CJ) (Newman and Adams JJ agreeing).
13. [2001] NSWCCA 299 at [39] (Smart AJ) (Heydon JA and Simpson J agreeing).
14. (2022) 110 NSWLR 163; (2022) 304 A Crim R 62; [2022] NSWCCA 241 at [60]-[61] (Bell CJ, Button and N Adams JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2024