Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd

Land and Environment Court (NSW)|2022-04-29|Before: Pain J

Solicitors: Department of Planning and Environment, Legal Branch McGirr Lawyers File Number(s): 2019/81751

Ex Tempore Judgment

By Notice Of Motion (NOM) dated 8 April 2022 the Prosecutor seeks leave to rely on additional evidence in this prosecution of the Defendant for illegal land clearing under the Native Vegetation Act 2003 (NSW) (NV Act) in the Walgett and Narrabri shires during 2013-2014.

Affidavits of Rollason solicitor

The first affidavit of Mr Alexander Rollason dated 8 April 2022 (Rollason 1) solicitor for the Prosecutor traversed the procedural history of the litigation, and the change in solicitors and counsel for the Prosecutor at the end of 2021 and during February 2022 (at pars 19-21). It also sets out details of the evidence the Prosecutor wishes to rely on as identified in the NOM. Relevant dates are set out in the chronology below and I will summarise the evidence as part of my consideration.
The second affidavit of Mr Rollason dated 8 April 2022 (Rollason 2) essentially annexes an ASIC search which was sent to the Defendant's solicitors on 22 February 2022 being current and historic extracts for the Defendant obtained 18 February 2022. A current and historic extract for T J O'Brien Investments Pty Ltd obtained on 21 February 2022 is also annexed. It was clarified at the end of submissions that an application to rely on that material will be made at a later date so that I do not need to refer to this in my judgment.

Affidavit of McGirr solicitor

Mr Daniel McGirr solicitor for the Defendant swore an affidavit dated 28 April 2022 read in these proceedings. At pars 10-31 he details the further evidence and additional court documents served by the Prosecutor without leave from 2 March 2022 to 8 April 2022. The evidence served by email on the Defendant included the affidavits of Mr Turner, Mr Watts, Mr Flynn, Mr Naven, Mr Minehan, Mr Talbert (two separate affidavits), Ms Rea, Mr Boschma, Dr Hammill Stone, Mr Boyce, and the evidentiary certificate under s 50 of the NV Act.
On 6 April 2022 Mr McGirr received a copy of an affidavit by Dr Hammill Stone annexing her supplementary report. This was sent to Dr David Robertson, an expert witness for the Defendant. Dr Robertson advised Mr McGirr that he was away on leave until 11 April 2022. On 12 April 2022 Dr Robertson advised the Defendant's lawyers that he needed more time to consider the further report of Dr Hammill Stone and advised that the field notes from her site inspection in May 2018 should be obtained. After asking for the notes and receiving a response from Mr Rollason to the effect that the field notes were unable to be located, on 25 April 2022, counsel for the Defendant conferred with Dr Robertson who stated that the supplementary report of Dr Hammill Stone would introduce new calculations and opinions that would at least require him to attend the site for a further inspection and to carry out new mapping of the area prior to writing a second report. Due to existing professional commitments, he would not have the time to conduct the necessary site visit and other work and analyse the new material in Dr Hammill Stone's report which was not available at the time of preparation of Dr Robertson's previous report in time for a hearing next week.

Chronology

Following is a short chronology of salient events leading up to this application based on the parties' submissions and evidence and what is otherwise known to the Court: 1. The original summons commencing the prosecution was filed on 14 March 2019. 2. The Prosecutor served on the Defendant a s 247E notice on 16 September 2019, which included in part: 1. An affidavit of Dr Hammill Stone affirmed 13 March 2019; 2. An affidavit of Mr Minehan sworn 29 July 2019; 3. An affidavit of Mr Naven affirmed 23 July 2019; 4. An affidavit of Mr Watts affirmed 12 March 2019 annexing an expert report from Mr Watts dated 6 March 2019; 5. An affidavit of Mr Watts affirmed 12 July 2019 annexing an expert report from Mr Watts dated 28 June 2019; 6. An affidavit of Sheridan Lawson affirmed 17 December 2019; and 7. An affidavit of Stephen Redden sworn 20 February 2019. 1. The Prosecutor served on the Defendant an amended s 247E notice and a s 247J notice on 18 December 2020. This amended s 247E notice notified that the affidavit of Susan Rea affirmed 16 December 2020 would be relied on. 2. On 8 March 2021 the proceedings were set down for a 12-day hearing from 16 September 2021. 3. The Defendant served on the Prosecutor a s 247K notice on 3 August 2021. Accompanying this was an expert report of Dr Robertson dated 30 July 2021. 4. On 2 September 2021, the hearing dates from 16 September 2021 were vacated due to the impact of COVID-19 pursuant to a notice of motion filed by the Defendant which was neither opposed nor consented to by the Prosecutor. 5. On or around this date the hearing was set down for 10 days beginning 26 April 2022. 6. The Prosecutor served evidence without leave in late March/early April including further reports of Dr Hammill Stone and Mr Watts, as detailed in Rollason 1 and the McGirr affidavit, and which is the subject of the NOM. 7. The Prosecutor's NOM dated 8 April 2022 was filed on that day. 8. The Defendant's NOM dated 8 April 2022 was filed very late on that day. 9. A pre-trial mention was held on 11 April 2022. It was agreed that the parties' respective notices of motion be heard at the start of the period allocated for the substantive trial on 26 April 2022. It was agreed that the Defendant's NOM should be heard first. 10. The Defendant's NOM seeking orders for production of documents by the Prosecutor was heard on 26, 27 April 2022. 11. Judgment dismissing the Defendant's NOM was delivered on 28 April 2022. 12. The Prosecutor's NOM was heard on 28, 29 April 2022.

Prosecutor's submissions

Applicable principles are found in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 at [27]-[28] (Benedict Industries), applied in Department of Planning Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129 (Greentree) per Robson J. The considerations are firstly, whether evidence is relevant and admissible, secondly, whether its admission will cause irredeemable prejudice to the defendants, and thirdly, whether it is fair and just between the parties for leave to be granted.
Most of the additional evidence is as to formal and technical matters in relation to Mr Turner, Ms Rea, Mr Flynn, two affidavits of Mr Talbert, Mr Boyce and Mr Boschma and the certificate under s 50 of the NV Act.
In relation to the additional expert evidence sought to be adduced, the additional report of Mr Watts aerial imagery specialist responds to the report of Dr Robertson ecologist.
The additional report of Dr Hammill Stone firstly, responds to the report of Dr Robertson, secondly, responds to objections of the Defendant and, thirdly, provides some limited new material at pars 50-66 including two additional maps showing plant communities in cleared areas, all as outlined in detail in a three page table in the Prosecutor's submissions.
It is unknown to the Prosecutor if Dr Robertson will be called as a witness. However, as the Prosecutor cannot split its case it should be allowed to adduce the material of Dr Hammill Stone and Mr Watts which responds to that. As the evidence is a response to Dr Robertson's report it should not be difficult for the Defendant to respond to it.
The Defendant will not suffer any prejudice if the technical and formal material is allowed to be relied on by the Prosecutor.

Defendant's submissions

In Benedict Industries Biscoe J allowed the Prosecutor to rely on additional evidence which sought "to put into admissible form that which had been previously notified by the prosecutor, as distinct from evidence of new events such as a fresh inspection" (Benedict Industries at [23]). The Prosecutor's application was made at an early stage of the proceedings before a trial date had been fixed (at [25(b)]). Although the Prosecutor was "patching up" the prosecution case, it was not doing so because its earlier evidence was "grossly deficient" (at [34]). The circumstances in this case are entirely different.
In Greentree Robson J considered lateness as a significant factor. The minimisation of lateness and delay is considered to be a significant factor when dealing with late applications to amend pleadings or rely on evidence served in breach of court directions: UBS v Tyne as Trustee of the Argot Trust (2018) 360 ALR 184; [2018] HCA 45. In civil cases, leave of the court is required for expert evidence under the Uniform Civil Procedure Rules (2005) (NSW) r 31.28 and is not to be given unless the court is satisfied that there are exceptional circumstances that warrant the grant of leave or that the report is merely updating an earlier version served. Exceptional circumstances are out of the ordinary course or unusual, special, or uncommon: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; In the matter of Graziers Pastoral [2021] NSWSC 1680 (Graziers) per Black J at [27] - [29]; Warragamba Winery v State of NSW [2011] NSWSC 1118 per Harrison J at [14]. The sentiment of r 31.28 is applicable to criminal cases. I do not agree that the UCPR considerations should be applied in a criminal law case, the considerations being entirely different.
In R v TK (No 2) [2015] ACTSC 87 (TK case), Refshauge J refused to admit an expert report into evidence in the trial before his Honour. The report dated 17 March 2015 was delivered to the defendant's lawyers on 19 March 2015 with the trial to commence on 30 March 2015. There was no explanation for why the report was obtained and served so late. Neither party's lawyers addressed the matter properly so that vacating the trial date could be avoided. The defendant's lawyers could not obtain their own report. Justice Refshauge recognised that the diminution of resources to public sector agencies means there is always pressure on public officials such as prosecutors and few have the luxury of preparing for trials many months before the hearing: at [17]. The test for whether to admit the report was held to be whether there will be a miscarriage of justice: R v Solomon (2005) 92 SASR 331 at 358-9; [115]. Justice Refshauge held that the inability of the defendant's lawyers to challenge the evidence properly by having their own expert review the report and if appropriate give other evidence, did risk a miscarriage of justice and did not admit the report: at [26], [28]. I found this a useful case to consider in my reasoning.
The Prosecutor's application is extremely late, filed only 18 days before the date fixed for commencement of the trial, 3 of which were public holidays. No explanation for the lateness has been offered, as the Prosecutor conceded before seeking to walk back that concession by relying on the change of the Prosecutor's legal team in February 2022. The Defendant served its s 247K notice and the report of Dr Robertson in August 2021 and the Prosecutor had ample time to consider the evidence and prepare and serve any evidence in response. Mr Watts was not asked to prepare a supplementary report until 11 March 2022, six and a half weeks before the trial. Dr Hammill Stone was not asked to prepare a supplementary report until 17 March 2022, five and a half weeks before the trial.
The Prosecutor has served without leave much of its new evidence in late March and April 2022, around 8 months after the Defendant served Dr Robertson's report. If admitted the new expert evidence will create irredeemable prejudice if the Court were to allow the Prosecutor to rely on this additional evidence, as is clear from Mr McGirr's affidavit.
In relation to evidence going to formal and technical matters, if the evidence in this category was slight, it could have been prepared long ago. If the evidence is necessary, and the Prosecutor does not address why this is so, leave should not be granted as the Prosecutor's efforts were "grossly deficient" per Biscoe J in Benedict Industries. Evidence in this category was the subject of the Prosecutor's application in Greentree, where the Prosecutor was successful largely because there would not be prejudice to the Defendant as adjournment of the trial part-heard was inevitable. In the absence of any evidence about the necessity of the "formal and technical matters" and of an explanation of lateness, the Court should not grant leave in respect of that evidence.
In relation to the additional expert evidence sought to be relied on by the Prosecutor going to the clearing of native vegetation, comprised of further affidavits and expert reports of Mr Watts and Dr Hammill Stone, the Prosecutor submitted that most of the reports respond to Dr Robertson. None of Mr Watts' report can be read without reading Dr Robertson's and as reading Mr Watts' report would bring substantial amounts of Dr Robertson's report into evidence and require a reading of the whole Robertson report before the Defendant has opened its case relying on Mr Watts' report is objectionable on this basis also.
The content of Mr Watts' report at par 38 examines prior clearing on the site based on 11 images not used in Mr Watts' first report and this is clearly new evidence on which it would be unfair to allow the Prosecutor to rely at this late stage.
Dr Hammill Stone's second report is a mix of clarifications, supplementary analysis and response to Dr Robertson's report, to which reference is made throughout. A new mapping analysis has been carried out in relation to a newly defined "area of interest" relying on two Rapid Eye images not used in her first report to arrive at area calculations of a kind not undertaken in the first report. That is a wholly new approach by Dr Hammill Stone, which yields results of a wholly new kind compared with those of her first report. The results of the new approach can be found principally in sections 3.2 to 3.5 of the second report, but they are supported by other new material, such as definitions for numerous terms and Dr Hammill Stone's experience with Geographic Information Systems in section 1.7. Material deriving from the new approach and results is mixed with material that is responsive to Dr Robertson's report, especially in Table 6, in Table 7 and in Table 8. Dr Hammill's Stone's references to and quotations from Dr Robertson's report are objectionable because they bring Dr Robertson's report into evidence before the Defendant has opened it case.
Dr Hammill Stone's new approach and conclusions would, if received into evidence, introduce wholly new material that was not available to Dr Robertson when he carried out his site inspection, performed his calculations and wrote his report. Dr Robertson has not had time and will not have time in the next two weeks when the trial takes place to respond adequately to this new material. This is adequately demonstrated by the affidavit of Mr McGirr. If the Prosecutor were granted leave to rely on Dr Hammill Stone's second report, the Defendant would suffer irremediable prejudice.

Consideration

The parties have identified the relevant principles between them as identified in Benedict and Greentree by the Prosecutor, set out above in [9] and referred to by the Defendant in [15], [16] and [20]. The circumstances of this case vary from those in Benedict and Greentree where additional evidence was permitted to be led by the prosecutor. The matters identified in the TK case summarised at [17] above are also apt in recognising the pressures on parties in a criminal matter to prepare their cases along with the need to deal fairly with such applications to avoid a miscarriage of justice.
The Prosecutor seeks leave to rely on 10 additional affidavits, some of which annex substantial further reports particularly in the case of Mr Watts and Dr Hammill Stone, and a certificate under s 50 of the NV Act dated 7 April 2022. The evidence is clearly relevant to the Prosecutor's case. At issue is whether it will or is likely to cause irredeemable prejudice to the Defendant's case, if all or some is allowed to be admitted, and whether admission is fair and just in the circumstances.
The timing of the application is a highly relevant consideration given these are criminal proceedings. On any view this is a very late application by the Prosecutor, heard in the course of the first week of the period allocated for the substantive trial. As identified in the chronology above it was heard after an earlier notice of motion of the Defendant was first heard this week, a course the parties agreed to on 11 April 2022 during the pre-trial mention.
The volume of material is also an important consideration given the lateness of the application as the substantive trial is otherwise to commence on Monday 2 May 2022, which leaves only the weekend to prepare given my delivery of judgment at 4.15 pm today Friday 30 April 2022 following the completion of argument this morning.
The volume of material can be indicated as follows: 1. Turner affidavit of 10 March 2022 - 32 pages including annexures of 50 pars; 2. Watts affidavit of 21 March 2022 - a short affidavit annexing a 41 page expert report dated 21 March 2022; 3. Flynn affidavit of 22 March 2022 - 16 pages including annexures of 33 pars; 4. Naven affidavit of 28 March 2022- paragraphs 25-29 and annexure G (site maps); 5. Talbert affidavit of 1 April 2022 - 10 pages including annexures of 14 pars; 6. Rea affidavit of 4 April 2022 - 11 pages including annexures of 23 pars; 7. Boschma affidavit of 4 April 2022 - 9 pages including annexures of 22 pars; 8. Hammill Stone affidavit of 6 April 2022 - a short affidavit annexing an expert report dated 5 April 2022 which was 98 pages long; 9. Talbert affidavit of 6 April 2022 - 3 pages of 6 pars; 10. Boyce affidavit of 6 April 2022 - 8 pages including annexures of 13 pars; and 11. Evidentiary certificate dated 7 April 2022 - 32 pages including annexures, much of which is the relevant instrument of delegation.
The parties' submissions were also extensive and detailed requiring consideration of the additional expert material sought to be relied upon including by reference to the report of Dr Robertson sent by the Defendant to the Prosecutor on 3 August 2021.
In addition to this application being very late it is without explanation for why it is so late other than there was a change of the Prosecutor's legal team in February 2022, an inadequate explanation.
Considering the chronology set out above in [8], I note that this matter was commenced in March 2019 and was to have been heard in September 2021, being postponed solely because of COVID. The Prosecutor's 247E notice was served on 16 September 2019 including evidence of Mr Watts in two reports, and a report of Dr Hammill Stone. It was subsequently amended on 18 December 2020 to include an affidavit of Ms Rea. Dr Robertson's report was served in early August 2021. The hearing dates of 26 April to 9 May 2022 were allocated in September 2021. Five allocated hearing days remain and the hearing on liability should proceed on these from Monday 2 May 2022.
While a holistic objection is taken to the entirety of the Prosecutor's additional evidence given its volume and lateness, the Defendant accepted that some parts of the evidence on their own were not likely to be prejudicial.
I do not accept the Prosecutor's submission that the Defendant can be taken to have been on notice of the new evidence served without leave, the implication being that its legal representatives could have been preparing to respond to it since it was served late March/early April 2022. The NOM dated 8 April 2022 is being determined today and only when a decision is made will it be clear to the Defendant what the Prosecutor's evidence at trial will be. That trial starts on Monday.

New expert evidence Mr Watts, Dr Hammill Stone

As the Defendant emphasised, the new expert reports of Mr Watts and Dr Hammill Stone were served very late and they are clearly substantial in their content and length. In the time available to prepare this judgment I am not able to fully summarise the detailed submissions by both parties about the nature of the new evidence. According to the Prosecutor's submissions which contained tables identifying the nature of the evidence in separate categories, Mr Watts' additional affidavit annexing a supplementary report addresses more details of his qualifications and experience in the examination and interpretation of aerial imagery and responds to the contents of Dr Robertson's report in so far as it criticises Mr Watts' 2019 reports. While it does contain eleven aerial images not referred to in his earlier report (and therefore new evidence according to the Defendant) these are images which Dr Robertson relies on and should not therefore be a surprise for the Defendant nor should there be difficulty in dealing with the material.
According to the Prosecutor, Dr Hammill Stone's supplementary report dated 5 April 2022 generally responds to Dr Robertson' report, contains limited fresh evidence in parts of s 3.1, 3.2 -3.5 including two additional maps. As her report adopts Dr Robertson's findings of additional plant communities inter alia there should be no difficulty in the Defendant dealing with the new information.
Unsurprisingly the Defendant submitted it will suffer substantial irredeemable prejudice if these expert reports are admitted at this very late stage given the imminent trial and the pressure placed on the Defendant's representatives to deal with the material. Further given Mr McGirr's unchallenged evidence of Dr Robertson's unavailability next week admission of this new expert material would cause irredeemable harm to the Defendant if the current hearing dates are to be utilised.
I consider the additional affidavits of Mr Watts and Dr Hammill Stone and the accompanying new expert reports should not be admitted because it will cause irredeemable prejudice to the Defendant.

'Technical' and formal material

The Turner affidavit addresses a process of identifying cadastral boundaries by the deponent and attaches a plan showing cadastral boundaries of the property. This was argued to be necessary by the Prosecutor because this confirms the cadastral boundaries referred to in the first reports of Dr Hammill Stone and Mr Watts. Numerous references to these boundaries in the first reports of these experts were provided in a note supplied by the Prosecutor after the hearing.
The Defendant submitted that no reference is made to Mr Turner by either of those witnesses as the source of the cadastral boundaries they refer to and that the evidence is substantial and it will have difficulty dealing with it. As I understand the Prosecutor, the use intended to be made of Mr Turner's new evidence is that this can be overlaid on the existing evidence of these experts to confirm the location of the cadastral boundaries. It is new in that Mr Turner has not been identified previously as a witness although material produced by him is relied on by other prosecution witnesses. What he attests to is clarification of what he did in 2018 in producing the images relied on by Dr Hammill Stone and Mr Watts in their first affidavits. This matter is very finely balanced. Ultimately, I do not consider the admission of this evidence will cause irredeemable prejudice to the Defendant given its nature, it being commonly adduced in these types of criminal offences, and it can be admitted.
Ms Rea has sworn an earlier affidavit relied on by the Prosecutor. This additional affidavit deals with an additional imagery request made to her by Mr Rollason on 1 March 2022, at pars 3-15. Additionally Ms Rea refers to her earlier affidavit concerning orthorectification of images referred to by Mr Watts and Dr Hammill Stone in their earlier reports, and as supplied by Ms Rea to Mr Watts, at pars 16-23. While the Defendant submitted that it would suffer prejudice if this was admitted, given the nature of some of that affidavit I consider it can be relied on in part to the extent that it is clarifying what is already in evidence, namely paragraphs 16-23 and these can be admitted.
Mr Flynn an historian who gives evidence about European settlement is a new witness. No prejudice arises from that affidavit to the Defendant and it can be admitted.
The part of Mr Naven's affidavit at paragraph 25-29 and the site maps annexed at G is of limited scope, referring to what Mr Naven did in May 2019 at the request of Mr Redden. That can be admitted as I do not consider that to do so will cause irredeemable prejudice to the Defendant.
Two affidavits of Mr Talbert are sought to be relied on which attest that no development consent existed in relation to the relevant lots being located in the Walgett Local Government Area (LGA) except for one identified lot. That no orders have been issued in relation to those lots under the Noxious Weeds Act 1993 (NSW) is also confirmed. While new evidence the Defendant accepted that their admission would not cause it prejudice. Those affidavits can be admitted.
The affidavit of Mr Boyce proves that one lot is within the Narrabri LGA and no development consent has been issued in respect of that lot under the Noxious Weeds Act. A document annexed to the affidavit has already been provided to the Defendant as it is annexed to an affidavit of Mr Redden dated 20 February 2019. While new evidence the Defendant accepted that its admission would not cause it prejudice. That affidavit can be admitted.
The affidavit of Mr Boschma proves that the property is within the Local Land Services (LLS) North West Region and no property vegetation plan is held in relation to the property. While new evidence the Defendant accepted that its admission would not cause it prejudice as it essentially replaces the evidence of Sheridan Lawson dated 17 December 2019 who is no longer available to give evidence. That affidavit can be admitted.
The certificate under s 50 of the NV Act allows the Prosecutor to confirm that the Defendant is the landholder. As the Defendant submitted that reverses an onus of proof otherwise on the Prosecutor. I do not consider its admission causes irremediable prejudice to the Defendant as it concerns a matter likely to be established by other evidence already adduced and it can be admitted.

Orders

Pursuant to s 68(1) of the Land and Environment Court Act 1979 (NSW), the Prosecutor is granted leave to file an amended notice under s 247J of the Criminal Procedure Act 1986 (NSW) by adding to the list of evidence to be relied upon the following: 1. Affidavit of James Ben Turner, affirmed 10 March 2022; 2. Affidavit of Michael Cornelius Flynn, affirmed on 28 March 2022; 3. Affidavit of Stephen Christopher Naven, affirmed on 28 March 2022 pars 25-29 only; 4. Affidavit of Kimley Talbert, sworn on 1 April 2022; 5. Affidavit of Susan Patricia Rea, affirmed on 4 April 2022 paragraphs 16-23 only; 6. Affidavit of Dennis John Boschma, affirmed on 4 April 2022; 7. Affidavit of Kimley Talbert, sworn on 6 April 2022; 8. Affidavit of Daniel Boyce, affirmed on 6 April 2022; and 9. Certificate under s 50 of the Native Vegetation Act 2003 dated 7 April 2022.

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: 13 May 2022

Native Vegetation Act 2003(NSW)

Noxious Weeds Act 1993(NSW)

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