Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris

Land and Environment Court (NSW)|2021-02-02|Before: Robson J

Solicitors: In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294 Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin Pty Ltd (Defendants)

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendants) File Number(s): 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294; 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Publication restriction: Nil

Judgment

Before the Court is a notice of motion filed 22 January 2021 by the prosecutor in these part-heard Class 5 proceedings seeking that the further hearing listed from 15 to 19 February 2021 be vacated, and that the proceedings be listed for a further 5-day hearing commencing either on 8 or 22 March 2021.
The motion was heard on 2 February 2021 and further evidence and written submissions were received on 3 February 2021.
For the reasons that follow, I vacate the further hearing listed from 15 to 19 February 2021 and list the proceedings for a further 5-day further hearing commencing on 7 June 2021.

Background

I have recorded the nature and history of these proceedings in two earlier judgments: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 at [2]-[5]; Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129 at [3]. I adopt the background facts and definitions used in the earlier judgments. In Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129, I summarised the various charges as follows: "[4] In summary, the prosecutor has charged two individuals and two companies, Auen Grain Pty Ltd (ACN 000 937 824) ('Auen Grain'); Ronald Lewis Greentree ('Mr Greentree') - (the 'Greentree Parties'); Merrywinebone Pty Ltd (ACN 101 059 769) ('Merrywinebone'); and Kenneth Bruce Harris ('Mr Harris') - (the 'Harris Parties') (collectively, 'the defendants'), with eight land clearing offences each (32 charges in total) allegedly committed between December 2016 and January 2019 on a property known as "Boolcarrol" located north-west of Narrabri. More specifically, each defendant is charged with six offences pursuant to s 12 of the (now repealed) Native Vegetation Act 2003 (NSW) ('NV Act') in that between 29 December 2016 and 24 August 2017, each cleared native vegetation on Boolcarrol otherwise than in accordance with a development consent or property vegetation plan granted under the NV Act. Each defendant is also charged with two offences pursuant to s 60N of the Local Land Services Act 2013 (NSW) ('LLS Act') in that between 25 August 2017 and 18 January 2019, each cleared native vegetation in a rural regulated area otherwise than in accordance with a property vegetation plan under the NV Act; a notification or certificate under the LLS Act; or a development consent granted in accordance with the NV Act or the LLS Act."

Conduct of the hearing

On 20 December 2019, the substantive hearing was set down for hearing for 9 days commencing 24 August 2020.
On 24 August 2020, prior to the commencement of trial, an application was made by the Greentree Parties pursuant to s 247G(3)(e) of the Criminal Procedure Act 1986 (NSW) that the Court, by way of a preliminary hearing, give a ruling or make a finding pursuant to s 192A of the Evidence Act 1995 (NSW) in relation to the purported expert evidence of two witnesses proposed to be relied upon by the prosecutor be excluded on the grounds of inadmissibility and/or as warranting discretionary rejection.
The preliminary hearing proceeded by a procedure akin to a voir dire on 24, 25, 26 and 27 August 2020, being the first four days of the 9 days allocated, and judgment was handed down on 1 September 2020: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126. The prosecutor then opened its case on 1 September 2020, being the fifth day of the 9 days allocated, and thereafter made an application to rely upon further evidence. That application proceeded on 1 and 2 September 2020 and judgment was handed down on 3 September 2020: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129.
The substantive hearing thereafter continued on 3 and 4 September 2020, being the last two days of the 9 days allocated. At the end of the hearing on 4 September 2020, the substantive hearing was not completed, and inquiries were made of the parties as to their availability to continue the trial. The substantive hearing was then listed for further hearing commencing on 15 February 2021.

Evidence

The prosecutor read the affidavit of Timothy Christopher Walls affirmed 21 January 2021 and relies upon further matters raised in the prosecutor's written submissions dated 1 and 3 February 2021. The salient facts are relatively uncontroversial and may be summarised as follows: 1. On 15 January 2021, Ms S Callan, senior counsel for the prosecutor, informed the prosecutor of her unavailability to appear in the further hearing of the proceedings commencing on 15 February 2021 as a result of an order made on 14 January 2021 by Fullerton J in a long-running criminal trial of three accused in the Supreme Court (R v Obeid, Obeid and Macdonald (case numbers 2015/00212851; 2015/00214251; 2015/00212910)), where Ms Callan was lead counsel for the prosecutor; 2. That trial commenced in February 2020 and proceeded for five weeks up until 16 March 2020. More recently, that trial proceeded for a further three weeks in November 2020, when it was adjourned part-heard on 26 November 2020 due to counsel for one of the accused requiring major surgery in early December 2020. The consequence of this was that the further hearing was set down to recommence on 18 January 2021 with an estimated duration of three to four weeks; 3. In early January 2021, counsel for another of the accused was involved in an accident requiring major orthopaedic surgery in January, with the consequence that on 14 January 2021, Fullerton J made an order that the trial was to recommence on 1 February 2021 (and not 18 January 2021) with an estimated duration of three to four weeks. The consequence of this is that Ms Callan is unavailable for the five days from 15 February 2021 for these proceedings; 4. On 15 January 2021, the prosecutor wrote to the Harris Parties and the Greentree Parties seeking an indication as to their positions on the prosecutor's proposed notice of motion to vacate the 15 to 19 February 2021 hearing dates and that the proceedings be listed for a 5-day hearing commencing on 8 March 2021; 5. On 19 January 2021, the Greentree Parties recorded that they were agreeable to the proposed change in hearing dates (subject to a delayed commencement on 11 March 2021); and 6. On 21 January 2021, the Harris Parties indicated that they did not agree to the proposed change in hearing dates and opposed any vacation of the hearing dates listed from 15 to 19 February 2021.
The Harris Parties, having made oral submissions at the hearing of the motion on 2 February 2021, with the leave of the Court, later read the affidavit of Kenneth Bruce Harris sworn 2 February 2021, deposing to matters which had otherwise been the subject of the oral submissions made by Mr T Hale SC on 2 February 2021.
Mr Harris is the defendant in eight of the summonses and is the sole director and secretary of Merrywinebone, the defendant in eight other summonses, and provided evidence regarding the effect of "further" delay in these proceedings.
Mr Harris deposes that the various properties that make up Boolcarrol were previously owned as tenants in common by Mr Harris and Mr Greentree (the defendant in eight other summonses). He deposes that a dispute had arisen in 2017 between Mr Harris and Mr Greentree which, as a result of an arbitration in August 2019, was resolved with Mr Greentree agreeing to transfer to Mr Harris all his right, title and interest in the properties comprising Boolcarrol.
Mr Harris also deposes to legal advice he has received that the prosecutor has the power to issue a remediation order if native vegetation has been damaged as a result of offences of the type alleged in these proceedings, and that in the event that he is convicted in these proceedings, there is a risk that a remediation order may be made affecting parts of Boolcarrol. In these circumstances, until these proceedings have been determined, he will not know whether such a remediation order will be imposed and, as a result of this "uncertainty", he is constrained in the decisions he can make as to the future operations of the farming business conducted on Boolcarrol. He gives evidence as to the impacts of a further delay in relation to grazing operations, a possible sale of Boolcarrol, and banking arrangements. Mr Harris deposes that he has been constrained by the "uncertainty" since the commencement of the proceedings on 26 August 2019 and that any "further adjournment" will "only extend the period of uncertainty".
Mr Harris also expresses concern in relation to the damage to his reputation as a rural property owner and farmer in circumstances where various media publications have in 2020 reported on the proceedings and relies on the earlier affidavit sworn by his solicitor, Peter Leigh Harrison, on 28 November 2019, setting out the history of the investigation into the allegations now the subject of these proceedings.
At the hearing of the motion on 2 February 2021, the parties were informed that the Court was able (with some adjustment of judicial duties) to accommodate a further five consecutive days of hearing commencing on any of 8 March, 22 March, 10 May, 7 June and 21 June 2021. The Court was informed that the only dates that were "common" to the parties (including the Greentree Parties) were those commencing on 7 June 2021.

Submissions

The prosecutor submits first, that the offences which the accused had been charged may be characterised as "serious" and that Ms Callan has been involved in the hearing for a significant period of time and has carried out extensive preparation for the trial of these matters; second, although the prosecutor has taken steps to retain (by way of "pencilling in") an alternate senior counsel if necessary, this is undesirable for a number of reasons including the disadvantage of discontinuity, which is accentuated by the fact that one of the prosecutor's expert witnesses is mid-way through his evidence, with a cross-examination and re-examination outstanding; moreover, there is very limited time for an alternate senior counsel to become familiar with and to develop a reasonable understanding of the extensive brief of evidence, and then to make appropriate forensic decisions in relation to the further hearing.
While accepting the Harris Parties have expressed proper concern that the proceedings must be determined as expeditiously as possible on the basis that the proceedings have caused Mr Harris and his family significant concern, the prosecutor submits that there is no significant disadvantage to the defendants in the current hearing dates being vacated (presumably given a relatively short period of time involved - such that any disadvantage due to delay would not be significant) and that there is proper justification for the hearing to be vacated as the vacation would not give rise to unfairness or prejudice to the defendants' preparation and the hearing could still be conducted in an orderly, expeditious and efficient manner. Moreover, the retention of presently briefed senior counsel, in the circumstances, would facilitate a more efficient completion of the hearing.
The Harris Parties maintain their concern, as expressed in relation to a number of earlier applications to the Court in the course of these proceedings, that the proceedings be determined as expeditiously as possible and point to the fact that in November 2019, the Harris Parties initially opposed the prosecutor's application for the proceedings related to summonses in respect of Merrywinebone and Mr Harris to be heard concurrently with the proceedings related to summonses in respect of Auen Grain and Mr Greentree so as to avoid delay in resolving the proceedings.
The Harris Parties accept that the reasons for the adjournment in September 2020 (that is, after the hearing was not completed in the 9 days allocated) were not "wholly in the hands of the prosecutor" but note that the hearing on 1 and 2 September 2020 of the application filed by the prosecutor seeking to rely upon additional evidence (referred to at [7] above) occupied a substantial amount of time that would otherwise have been allocated to the hearing itself.
The Harris Parties also point to the fact that they made proper arrangements for senior and junior counsel (as well as solicitors) on the understanding that the further hearing would be proceeding in the week commencing 15 February 2021 and that, in any event, their senior counsel, Mr Hale, is not available during the week commencing 22 March 2021 and their solicitor is not available during the week commencing 8 March 2021. Given this, the dates originally proposed by the prosecutor in the notice of motion for the further hearing are not suitable and the "available" dates now suggested are four months away.
The Harris Parties point to the impact of any delay, as detailed in the affidavit of Mr Harris, in particular, and note that as a result of the settlement of the partnership dispute, Mr Harris now has various business decisions in relation to the conduct of Boolcarrol that are being deleteriously affected by any further delay.
In addition, to the continuing reputational damage to the Harris Parties, they submit that the "lengthy investigation and protracted proceedings" in circumstances where the prosecutor has proceeded in a "leisurely manner" have caused Mr Harris and his family significant concern and distress, and that over four years have passed since it is alleged that the first offence took place.
The Harris Parties also submit that the fundamental aspect of this application relates to the "convenience and costs of the prosecutor" involved in retaining alternate senior counsel.

Consideration

In an application to vacate a criminal trial the onus rests upon the party seeking to vacate a hearing and there is strong public interest that once a date is fixed for hearing on the basis of parties being ready to proceed, a criminal trial should ordinarily proceed with expedition: R v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 at [12]; R v Warwick (No 64) [2019] NSWSC 163 at [21]; R v Alexandroaia (1995) 81 A Crim R 286 at 291; Slotboom v R [2013] NSWCCA 18 at [36]. Moreover, it is essential to the orderly disposition of the work of the courts and the administration of justice that trials are not adjourned unnecessarily: Murphy v R (1989) 167 CLR 94; [1989] HCA 28 at 99; Chief Executive, Office of Environment and Heritage v Turnbull [2019] NSWLEC 125 at [12]-[18].
I consider that it is appropriate that the further hearing listed from 15 to 19 February 2021 be vacated and that the proceedings be set down for a further 5-day hearing commencing on 7 June 2021. My reasons follow.
Although not on its own determinative, the hearing is not without some complexity. Apart from involving eight discrete land clearing offences comprising in total 32 discrete charges allegedly committed between December 2016 and January 2019, the offences arise under each of the (now repealed) NV Act and the LLS Act, each of which has discrete aspects and application. Moreover, the nature of the offences, which may be loosely described as involving the clearing of native vegetation has, at least thus far, involved detailed technical and scientific expert evidence as well as extensive lay evidence. While such aspects are not unique to these proceedings, I consider the nature and volume of the evidence and the large volume of documentation (including extensive expert evidence) thus far adduced, and the anticipation that further likely related evidence will be sought to be relied upon, has created a level of complexity which makes the retention of an alternate senior counsel more problematic than would otherwise be the case.
Further, while there is significant overlap between the 32 discrete charges (effectively four sets of summonses), the overlap in relation to the matters involving the Greentree Parties and the Harris Parties (each separately represented) and to the extent that there appears to be discrete (and sometimes different) factual and legal matters being raised in relation to each of the parties has added another layer to the complexity of the matter.
I accept that the Harris Parties (and in particular Mr Harris) have been, and remain, properly concerned in relation to what was submitted were past delays and what will be a further delay in the completion of the hearing if the further hearing dates are vacated. While I accept the submission of the prosecutor that there is no compelling evidence that the previous orders of the Court, that all the matters proceed concurrently, may have inherently involved the Harris Parties being delayed, I am not satisfied that this is the case. Further, I do not consider the concern expressed by Mr Harris regarding legal advice he has received in relation to a remediation order to be persuasive. Such orders are issued under the Biodiversity Conservation Act 2016 (NSW) and are not contingent on the outcome of these enforcement proceedings. Despite this, I accept that the prospect of such an order is of concern to Mr Harris.
Apart from the above, I accept the evidence that there is a genuine concern in relation to any further delay as set out in Mr Harris' affidavit sworn 2 February 2021, which I have noted above at [12]-[14], however, given that all parties (and witnesses and the like) are available in early June 2021 and that the Court is able to make those days available (a matter about which I expressed some surprise during the hearing of the motion given the availability of counsel, solicitors, witnesses and the Court dates), I consider this represents an appropriate balancing of the interests of (and fairness between) the parties as well as the public interest in the administration of justice. In this regard, I note that the unavailability of the prosecutor's senior counsel arises in unusual circumstances beyond the control of any parties associated with the present proceedings.
I also accept the prosecutor's submission that in the circumstances it is more likely that the proceedings will be able to be conducted more efficiently if the present representation of the parties is maintained.
As such, I do not accept the submission that it is simply a matter of "convenience and costs of the prosecutor" as submitted by the Harris Parties. In any event, I may have reached a different view if the vacation of the further hearing dates were to result in a delay of more than the approximate 15 weeks which will follow from my orders.

Orders

The orders of the Court are: 1. The further hearing in these proceedings listed from 15 to 19 February 2021 be vacated. 2. These proceedings be listed for a further 5-day hearing commencing on 7 June 2021.

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: 04 February 2021

repealed) Native Vegetation Act 2003(NSW)

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