Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v T J O'Brien Investments Pty Ltd; Secretary, Department of Planning and Environment v Edenmore Farms Pty Ltd; Secretary, Department of Planning and Environment v Timothy Justin O'Brien
[2025] NSWLEC 8
Land and Environment Court (NSW)|2025-02-20|Before: Pepper J
The Prosecutor Seeks to Tender Further Expert Reports
This prosecution concerns the alleged clearing of native vegetation by the application of herbicide across two farms, namely, Keelendi and Edenmore Farms, in New South Wales.
In addition to lay evidence, the prosecutor relied upon the expert evidence of:
1. Associate Professor Richard Thackway, a landscape ecologist, dated 16 March 2023, together with a supplementary report dated 14 February 2025 (together, "the Prof Thackway reports"), the latter of which was in response to Dr David Robertson's expert report dated 24 January 2025 and his addendum dated 7 February 2025 (together, "the Dr Robertson reports"), filed by the defendants;
2. Dr Kathryn Hammill, an ecologist, dated 16 June 2022, together with a supplementary report dated 18 February 2025, in response to the Dr Robertson reports ("the Dr Hammill reports"); and
3. Leo Watts, a surveyor with expertise in aerial imagery interpretation, dated 15 June 2022 ("Watts primary report"), 6 February 2025 and his report dated 17 February 2025 (together, "the Watts reports"), the latter of which was in response to the Dr Robertson reports.
The objections served by the defendants to the prosecution's evidence were extensive, especially to the expert evidence. The parties were ordered to file and serve written submissions in respect of the more substantive objections. While the prosecutor complied with the order, the defendants elected to rely upon the schedule of objections that it had filed and served without expansion.
The defendants' schedule of objections was brief in its description of the basis of the objections raised by them. On occasion this succinctness gave way to opacity. The relevance of this is that it was not immediately apparent that a further report by Watts dated 3 March 2021, which he referred to in his primary report, was not appended to his primary report and/or had not been formally served on the defendants.
As a matter of efficiency, given the voluminous nature of the defendants' objections, the Court considered its rulings to the objections to evidence in chambers and proceeded to hand them down upon each witness being called. The parties did not object to this course.
Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd;... [2025] NSWLEC 8 | Case summary | Zoe
As indicated above, in response to the prosecution's expert evidence, the defendants relied upon the Dr Robertson reports. Dr Robertson is an ecologist with expertise in the interpretation of aerial photography. His reports critiqued all of the expert reports relied upon by the prosecution, including Watts.
The defendants served the Dr Robertson reports exceptionally late. They were originally ordered to serve any expert reports by 8 November 2024 (pursuant to s 247K of the Criminal Procedure Act 1986).
Notwithstanding the late service, the prosecutor endeavoured to respond to the evidence rather than vacate the trial, by instructing each of the prosecution experts to respond to Dr Robertson's reports. This necessitated a brief adjournment of the trial (after the lay evidence was completed) while reports in reply were prepared. As each report was finalised, it was served upon the defendants.
The trial resumed, the evidence of Prof Thackway (including his cross‑examination) was completed and he was excused.
The Court's rulings to the Watts reports were provided to the parties prior to Watts being called, but, in recognition of the centrality of his evidence to the proceedings, the Court indicated that if any party wanted to make oral submissions in relation to the proposed rulings, it should do so.
In the result, the defendants submitted that paragraphs 129 to 136 of the Watts primary report should be rejected on the basis that Watts referred thereat to his report dated 3 March 2021, which had neither been served nor relied upon by the prosecutor.
The prosecutor pressed the tender of those paragraphs on the basis that they merely provided context to the Watts reports and further explained Watts's methodology in selecting the areas of interest that he directed his opinions to as contained in his primary report.
However, a closer examination of the material contained in those paragraphs revealed that the 3 March 2021 Watts report was used to assist in the formulation of the findings in the primary report, a matter that the prosecutor properly conceded (T165:01-28).
As a consequence of the concession, the prosecutor then sought to tender the 3 March 2021 Watts report, and a supplementary report to that report dated 8 June 2022 (together, "the earlier Watts reports").
Unsurprisingly, this attempted tender was objected to by the defendants, who asserted that they would be prejudiced at this late stage of the proceedings given that:
1. they had not read the earlier Watts reports;
2. Dr Robertson had already served his response to the Watts reports. He could not prepare a response to the earlier Watts reports in sufficient time to permit the trial to conclude within the allocated hearing time (by 28 February 2025);
3. Prof Thackway had been cross-examined and excused. His reports were premised, at least in part, on the findings of the Watts reports as to the identification of the areas allegedly cleared the subject of the charges, and therefore, he may potentially have to be recalled. This would necessitate a detailed examination of the earlier Watts reports and Prof Thackway's evidence (including his cross-examination), which could not be finalised quickly given that the defendants had not read the earlier Watts reports; and
4. Watts was the next witness scheduled to be called and cross-examined and this would obviously result in a significant delay to his evidence being finalised.
The submissions of the defendants are compelling. While the basis of the objection to the impugned paragraphs could have been more clearly articulated by the defendants, the fact remains that the prosecution is seeking to rely upon the opinions of an expert that are based, in part, on the earlier findings of that expert contained in reports that have not been formally served on the defendants.
I agree with the defendants that to permit the prosecution to rely on the earlier Watts reports at this juncture will cause irremediable prejudice to the defendants that cannot be satisfactorily cured at this stage of the proceedings. It will cause the trial to adjourn part-heard for several months while the evidence is digested and responded to.
In addition to the matters discussed above, it is not inconceivable that were the earlier Watts reports admitted into evidence and responded to by Dr Robertson in a timely manner, this would necessitate further responses from Prof Thackway and Dr Hammill.
Turning to the likely prejudice suffered by the prosecutor if the earlier Watts reports are not permitted into evidence, when asked whether their rejection would be irremediable, the prosecutor disavowed this proposition taking the Court to other parts of the Watts primary report by way of illustration (T169:35-40, 171:13-50, 172:01-06).
Although the defendants were egregiously late in the service of Dr Robertson's reports, the present proposed tender is markedly different for the reasons articulated above.
Finally, while the earlier Watts reports are relevant and admissible, their probative value is limited insofar as they deal with alleged clearing outside the current charge period the subject of these proceedings.
[2]
The Earlier Watts Reports Are Rejected
In my view, having regard to the prejudice to the parties, considerations of fairness and justice as between the parties, and the resultant delay that this would cause to the finalisation of the proceedings if the earlier Watts reports are permitted into evidence, their tender must be refused.
In arriving at this conclusion I have had regard to the principles set out in the following cases: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 (at [27]-[34]), Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 (at [68]), Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78 (at [7]-[9]) and Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88; (2024) 259 LGERA 388 (at [79]-[86]).
This means that some - but not all - of paragraphs 129 to 136 of the Watts primary report must similarly be rejected. I shall therefore hear from the parties with respect to the objections to each of those paragraphs.
[3]
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Decision last updated: 21 February 2025