Sutherland Shire Council v Benedict Industries Pty Ltd

Interlocutory History

1. In light of the submissions made by Benedict (see below), it is necessary to set out in some detail the procedural history of these proceedings. On 7 September 2012 these proceedings were commenced. Since then, there have been at least 10 occasions on which this Court has made directions and, on no fewer than six or seven occasions the Court has ordered the prosecutor to provide its notice or amended notice of it case under s 247E and/or s 247J of the Act.
2. On 26 October 2012, the Court made an order that, by 7 December 2012, the prosecutor was to file and serve notice of the prosecution case in accordance with s 247E of the Act ("first s 247E order").
3. Accordingly, the first s 247E order effectively required the prosecutor to file and serve all affidavits and expert reports upon which it proposed to rely on before 7 December 2012.
4. By way of letter dated 7 December 2012, the prosecutor served on the defendant notice of the prosecution case under s 247E of the Act ("first s 247E notice"). That notice included a list of affidavit, which were served on the defendant.
5. On 7 January 2013, the prosecutor provided a further notice under s 247E of the Act ("second s 247E notice"). In serving that notice, the prosecutor stated in its letter to the defendant's solicitors of 7 January 2013: The evidence served is the only evidence which the Prosecutor proposes to adduce at the hearing of the proceedings as to guilt.
6. On 25 January 2013, the defendant provided its notice under s 247F to the prosecutor.
7. On 1 February 2013, on the date that the proceedings were before the Court for their second directions hearing, the prosecutor indicated to the Court that it intended to seek leave to amend charges to include an additional charge by way of a separate summons. The Court granted the prosecutor leave to file any such motion on that date. The Court also ordered the prosecutor to serve any amended notice pursuant to s 247E of the Act on or before 8 February 2013.
8. On 11 February 2013, the prosecutor served an amended notice under s 247E of the Act ("third s 247E notice"). The third s 247E notice gave no notice of any intention on the part of the prosecutor to rely on any affidavit.
9. On 11 March 2013 the prosecutor served a further supplementary notice under s 247E of the Act ("fourth s 247E notice").
10. On 3 June 2013, the defendant provided notice to the prosecutor under s 247K of the Act.
11. On 14 June 2013, the prosecutor wrote to the defendant indicating that the prosecutor proposed to file and serve additional affidavits to address matters disclosed by the defendant under the defendant's s 247K notice. This course was opposed.
12. By 24 July 2013, it became apparent that the prosecutor proposed to rely upon an additional six affidavits.
13. On 2 August 2013, the Court heard and determined the prosecutor's contested application to supplement its s 247E notice by inclusion of the six affidavits. The Court granted the prosecutor leave to do so (Benedict Industries).
14. On 6 August 2013, the prosecutor served a further supplementary notice under s 247E of the Act ("fifth s 247E notice") in accordance with leave granted by the Court on 2 August 2013.
15. By way of notice of motion filed 4 October 2013, the defendant sought orders for a preliminary hearing to hear and determine a submission that the charge in proceedings 50921 of 2012 should not proceed to trial by reason of the circumstances that the prosecutor could not establish that the charge was not statute barred.
16. On 30 October 2013, the prosecutor served two further affidavit providing evidence in relation to the commencement of the proceedings within time.
17. On 8 November 2013, the Court granted leave to the prosecutor to rely on the additional affidavits served on 30 October 2013, and directed the defendant to file and serve its expert report pursuant to s 247K(f) by 22 November 2013.
18. On 18 November 2013, the prosecutor served a further supplementary notice under s 247E of the Act ("sixth s 247E notice").
19. On 10 December 2013, the Court set down a revised timetable including that the prosecutor file and serve its response under s 247L, by 8 February 2014.
20. Between 6 and 14 February 2014, the prosecutor served on the defendant further affidavits of expert witnesses (an additional affidavit of Mr Ian Drinnan and an affidavit from a soil scientist, Ms Pamela Hazelton). The defendant notified the prosecutor that it required the leave of the Court to rely on the additional affidavits and that such leave would be opposed by the defendant. The prosecutor filed its notice of motion on 13 February 2014. That motion was opposed.
21. On the contested application for leave to rely upon the additional prosecution affidavits, the defendant adduced evidence of the prejudice being caused to the defendant by the protected nature of the proceedings and the delays caused by the prosecutor's conduct. That evidence is referred to by Craig J in his judgment on that motion (Benedict Industries (No 2) at [54]).
22. On 19 March 2015, the Court granted the prosecutor leave to rely upon the additional affidavits and to file and serve supplementary s 247E and s 247J notices (Benedict Industries (No 2)).
23. Subsequently, and in accordance with that leave, the prosecutor filed and served its supplementary notices, including, in effect its seventh s 247E notice.
24. On 10 April 2015, the prosecutor filed and served a consolidated s 247E notice ("eighth s 247E notice") and a consolidated s 247J notice. The consolidated s 247J notice identified that the prosecutor would rely at trial on 26 affidavits and 16 witnesses.
25. On 27 April 2015, the proceedings were fixed for a four week trial commencing 16 June 2015. On 8 May 2015, the date was later revised to commence on 9 June 2015, to accommodate the possible partial unavailability of Mr Drinnan due to the foreshadowed lengthy cross examination of him by the defendant.
26. On 1 May 2015 the defendant filed and served its amended consolidated notices under s 247K.

Notice by Prosecutor of Intention to Rely on Further New Evidence

1. As the affidavit of Ms Roslyn McCulloch sworn 26 May 2015 deposed (Ms McCulloch is a solicitor engaged by the prosecutor and who has daily carriage of the matter), at a pre-trial hearing on 8 May 2015, the prosecutor informed the Court of its intention not to rely on the affidavit of Ms Leisa Hasham sworn 2 August 2013, because the prosecutor had, after meeting with Ms Hasham in conference, formed the opinion that she was not a reliable witness. Instead, the prosecutor told the Court that it proposed to rely on an affidavit to similar effect by Ms Ellen Whittingstall, which was to be filed and served by 15 May 2015.
2. Accordingly, on 8 May 2015, the Court made the following order which was not complied with: 3. The prosecution is to file and serve any notice of motion for leave to amend its Div 2A notices under the Criminal Procedure Act 1986 by no later than 15 May 2015, such notice of motion returnable at 10.00am on 9 June 2015 before the trial judge …
3. The affidavit of Ms Hasham was brief. It comprised seven pages with a singular annexure, namely, her curriculum vitae. In her affidavit she deposed that she is Team Leader Archives in the Department of Administration and Governance of the council. She stated that she has had considerable expertise in file and record searching, especially in searching the council's files and records. She further stated that she had searched the council's records in relation to the land "known as Lots 1 and 2 DP1176153" to locate documents which related to the land.
4. Ms Hasham went on to detail the searches that she undertook. However, these searches, as indicated by her in her affidavit, did not include a search of the Document Management System ("DMS"), the paper copies of development consent folders and boxes, or the council minute books. She also deposed to delegating searches of the register of building application forms to members of an archive team employed by the council. In respect of the searches, she stated that she found no development consents in respect of the land.
5. As stated above, the existence of relevant development consents is one of the central issues in the proceedings. Because the prosecutor bears the onus of proving beyond reasonable doubt that Benedict had no consent to carry out the impugned works the subject of the five charges, the relevance and importance of Ms Hasham's evidence (and evidence of that ilk) becomes apparent.

Events After 8 May 2015

1. In his affidavit affirmed 9 June 2015, Mr Luke Walker, a solicitor employed by Minter Ellison, Benedict's legal representative in the proceedings, detailed a chain of correspondence passing between the prosecutor and Benedict after the directions hearing before the Court on 8 May 2015.
2. That correspondence relevantly revealed the following: 1. an increasing concern by Benedict, expressed at least as early as 18 May 2015, that it had not yet received the evidence of Ms Whittingstall despite several promises by the prosecutor that the evidence was forthcoming; 2. that the council was unwilling to disclose to Benedict the basis of its view that Ms Hasham was an unreliable witness; 3. that the affidavit of Ms Whittingstall was not served until 25 May 2015, at which point Benedict communicated to the prosecutor that it anticipated that it would oppose the grant of leave; 4. that Benedict sought to undertake its own inspection of the various databases referred to in Ms Whittingstall's affidavit but that due to the large amount of personal and confidential information contained on those databases, access had to be supervised at all times by the council. As a consequence, in order to inspect the material Benedict agreed to sign a confidentiality agreement; 5. that on 26 May 2015 Benedict issued a subpoena to the council to produce many of the documents referred to in Ms Whittingstall's affidavit (by way of interpolation, these documents were produced to the Court on the first day of the hearing on 9 June 2015); 6. that as at 1 June 2015, six additional affidavits detailing searches of records by a council search team had not been served on Benedict; and 7. that this was still the case as at 2 June 2015, notwithstanding that there were only three working days remaining before the hearing commenced. Therefore, Benedict would oppose the leave sought to rely on any of the further evidence relied upon by the prosecutor. In addition: … if the leave sought by the Prosecutor is granted, the Defendant will seek as a term of that grant of leave that the existing trial dates commencing on 9 June 2015 be vacated and that the matter be relisted to allow the Defendant to fairly consider and deal with this new material. If leave is granted and trial dates vacated, the Defendant will seek its costs pursuant to s257F.
3. The affidavits of Ms McCulloch sworn 26 May 2015 and 9 June 2015 in support of the prosecutor's application, relevantly stated that: 1. Ms Whittingstall was required to undergo surgery to a nerve in her right arm on 15 May 2015, and that she was on sick leave thereafter, facts that only became known to the prosecutor after directions were made by the Court on 8 May 2015. As a consequence, the affidavit of Ms Whittingstall was not sworn until 22 May 2015 and not served on Benedict until 25 May 2015; 2. during a conference with Ms Whittingstall on 19 May 2015, it became apparent that the indexing system used by the council to search for minutes of the council meeting was not complete and that further searches were required to be undertaken of the voluminous council minute books from a search team comprising six council officers. The prosecutor would therefore seek leave to file affidavits from the six search team members as part of its application to rely on the affidavit of Ms Whittingstall; 3. in the course of preparing her affidavit, Ms Whittingstall discovered that some of the documents in a particular file were missing and that this necessitated a further examination of the minutes of the council and its committees to establish that there had been no consent granted relevant to the earth mound or quarry activities on Lot 2; 4. the proposed affidavits referred to in her affidavit on 26 May 2015 from search team members had been sworn and served on the defendant. They comprised affidavits from: 1. Ms Jordan Lewis-Stark sworn 1 June 2015; 2. Ms Rachael Belinda Schimpf sworn 2 June 2015; 3. Ms Christine Margaret Edney sworn 3 June 2015 (third affidavit); 4. Ms Karin Lynne Barrass sworn 3 June 2015; 5. Ms Alyce Bronte Fisher sworn 3 June 2015 and 5 June 2015; 6. Mr Todd Matthew Hopwood sworn 5 June 2015 (second affidavit). 7. These affidavits were exhibited to Ms McCulloch's affidavit sworn 26 May 2015; 1. although in her 26 May 2015 affidavit she stated that it was estimated that it would take approximately 100 hours to search the council minute books, in fact the search took "considerably longer" and did not conclude until the afternoon of 5 June 2015. The search was further delayed when on 4 June 2015, it was discovered that three volumes of the minute books ordered from the NSW Government Repository had not been delivered to the council; and 2. in addition to the search of the council's minute books, a search was undertaken by Ms Whittingstall in relation to consents granted to the council's TPO and a further affidavit was sworn by Ms Whittingstall on 4 June 2015 in relation to that search. An affidavit was also sworn by Mr James van Breda, a Tree Assessment Supervisor, on 4 June 2015 regarding consents issued under the TPO since 2003. These affidavits were served on Benedict on 4 June 2015. The affidavits were also exhibited to Ms McCulloch's 9 June 2015 affidavit.

The New Body of Evidence is Substantial and Complex

1. The new body of evidence the prosecutor now seeks to rely upon comprises 10 affidavits from eight different components. The affidavits, including their annexures, total 767 pages.
2. The affidavit of Ms Whittingstall sworn 22 May 2015, including its annexures, totals 267 pages. It is presented as expert evidence by a person with specialised knowledge in relation to archives and record keeping. I agree with Benedict's characterisation of the content of the affidavit as substantial, complex, and technical, in a number of respects. The annexures require cross referencing, not only to the text but to other annexures to the affidavit.
3. As the chronology above demonstrates, following the late service of Ms Whittingstall's first affidavit on 25 May 2015, the prosecutor served the remaining nine search team, affidavits in an ad hoc fashion from 1 to 5 June 2015. In respect of these search team affidavits the fact that their searches overlap temporally exacerbates the difficulty of properly comprehending their evidence. For example, an affidavit of Mr Jordan Lewis-Stark, sworn 1 June 2015, deposes to searching various council minute books for the years 1947, 1948 and 1951, but not 1949 or 1950, which were searched by another person. Accordingly, Benedict's representatives must crosscheck the various affidavits to see which deponents searched which period and in relation to which council committee.
4. Unsurprisingly and entirely understandably, Senior Counsel for Benedict candidly informed the Court that he had not fully read and not fully understood the totality of the new evidence and had not been in a position to assess its impact on the defendant in the conduct of its defence.
5. The body of evidence the prosecutor now seeks to rely upon is far greater in scope than anyone could have anticipated from the remarks made to the Court by the prosecutor on 8 May 2015 (this is not in any way meant as a criticism directed to the prosecutor's Senior Counsel, whom I have no doubt made those statements based on the facts known to him at that time).
6. Despite this onslaught of extraordinarily late new evidence, as the affidavit of Mr Walker demonstrates, Benedict has not remained idle in the face of the affidavit avalanche. Attempts have been made by it to deal with the material. Attempts have been made by it to request, by way of subpoena, production of documents referred to in the evidence. Attempts have been made by it to inspect the council's minute books. For example, on 3 June 2015, a solicitor in the employ of Minter Ellison, Mr James Innes, sought to inspect the council's minute books at the offices of the council, during which time (approximately seven hours) he was only able to complete a review of four books. There were 453 minute books available for inspection. The minute books can only be inspected at council's premises during regular business hours due to the sensitivity of the information contained within them as referred to above.
7. Mr Walker estimates that on the assumption that Mr Innes ceased all other work solely to undertake the task of reviewing the remaining 448 minute books, it would take him approximately 40 to 45 business days to complete the task.
8. On 3 June 2015 Mr Innes also sought access to council's RECFIND search system (one of the primary documentary database searched by both Ms Hasham and Ms Whittingstall). While council granted access, due to the confidential nature of the information contained on that database, a council officer was again required to be present at all times to supervise the search. Any further searches will need to be conducted during normal business hours.
9. Benedict submitted that it or its legal representatives would need to undertake the following steps in order to be in a position to deal with the new evidence sought to be relied upon by the prosecutor: 1. first, carefully read and properly comprehend the totality of the new evidence; 2. second, consider what advice to give Benedict in relation to the new material and its implications for the future conduct of the proceedings; 3. third, form a view as to whether advice or guidance in relation to the new evidence should be sought from a person with specialised knowledge in relation record keeping and archiving, and advise Benedict in this regard; 4. fourth, assuming instructions were given to engage such an expert, identify and instruct the expert; 5. fifth, undertake searches of the same material that both Ms Whittingstall and the search team searched. This includes the council minute books, files and databases referred to in the new evidence in order to test representations in various affidavits as to what is and what was is not present in that material; 6. sixth, consider whether to issue further subpoenas or notices to produce arising from the new evidence and, if production is forthcoming, read and analyse this material; 7. seventh, consider what, if any, evidence Benedict should adduce in reply; and 8. eighth, formulate objections to the new affidavit material and supplement its s 247K notice as a consequence.
10. Although these steps were not stated in the affidavit of Mr Walker, their necessity is a matter of litigation common sense.

Possible Options in Determining the Leave Application

1. There are four options available to the Court in the exercise of its discretion under Div 2A of the Act, and having regard to the Court's inherent power to control and supervise the conduct of proceedings so as to prevent unfairness (State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493B per Gleeson CJ): 1. first, refuse the prosecutor leave to rely on the evidence (that is to say, exclude it) and commence the trial; 2. second, grant the prosecutor leave to rely on the new evidence subject to an order that the trial be vacated, together with consequential orders; 3. third, grant the prosecutor leave to rely on the new evidence, commence the hearing, and at an appropriate juncture in the prosecutor's case adjourn the hearing part-heard together with consequential orders; or 4. fourth, grant the prosecutor leave to rely on the new evidence without vacating the trial and commence the hearing without any adjournment.
2. It is convenient to deal with the fourth and third options first.

Leave Ought Not be Granted to Rely on the New Evidence Without Vacating or Adjourning the Trial

1. The prosecutor submitted that either of the third or fourth options were suitable in the circumstances. It was the contention of the prosecutor that given the length of the hearing, and in particular, the likely length of the cross-examination of first witness to be called, namely, Mr Drinnan, this would afford Benedict sufficient time to properly understand the new evidence, seek instructions, and respond to it prior to the commencement of its defence.
2. This suggestion may be swiftly and categorically rejected. There is, in my opinion, no way that the defendant can meet this new evidence and participate in the trial absent vacation or adjournment part-heard of the proceedings. The volume and complexity of this very late new evidence precludes the fourth option. It is neither feasible nor fair for the trial to commence with the expectation that the Benedict will digest and deal with this new evidence as the hearing progresses.
3. It is a fundamental aspect of fairness that a defendant be afforded sufficient opportunity to understand and make forensic decisions with respect to the evidence relied upon by prosecutor prior to the trial commencing.
4. This entitlement, in my opinion, must also lead to the rejection of the third option.
5. The prosecutor submitted that Ms Whittingstall's evidence, and the associated affidavits deposed to by members of the search team, related to a discrete issue, namely, the existence or otherwise of any relevant consent, and that therefore, the trial could commence and adjourn part-heard in order to efficiently utilise the time that had been set aside by the Court to hear the charges. Such a process would not, the prosecutor asserted, unduly prejudice the defendant.
6. In response, Benedict submitted that while it was unlikely that the new evidence would have any bearing on the forensic decisions made in respect of some of the witnesses relied upon by the prosecutor, for example, Mr Drinnan, this could not be known with any certainty. Again Benedict submitted that it was a fundamental aspect of any criminal trial that no defendant should be compelled to defend criminal charges without being afforded the opportunity to consider and understand the ramifications of all the material relied upon by the prosecution in support of those offences.
7. While no authority was proffered to the Court in support of this proposition, it is, in my view, an axiomatic feature of any criminal trial. I accept, given the volume, complexity and late service of the new evidence, that the defendant neither knows the relationship between the evidence contained in Ms Whittingstall's affidavit and the search team affidavits and the rest of the evidence relied upon by the prosecutor in this case, nor can it confidently make forensic decisions based on this material. It is possible, for example, that as a result of this new evidence, that Benedict concedes that there was no relevant consent. It is not for this Court to second guess the forensic decisions made by Benedict.
8. Accordingly having rejected the third and fourth options, this leaves only the first and second options referred to above for consideration.

The New Evidence Should Not be Excluded

1. Benedict submitted that because of the interlocutory history of the proceedings revealing continual delay by the prosecutor in finalising its evidence on liability, because of the prejudice that would be suffered by the defendant were further delay incurred, and having regard to the efficient dispatch of Court business, the evidence should be excluded pursuant to s 247N(1) of the Act.
2. In Benedict Industries Biscoe J helpfully, with respect, set out and analysed Div 2A of the Act (at [3]-[17]). I adopt and apply, without repetition, that analysis in the present application.
3. In that case, his Honour concluded that leave of the Court was required by the prosecutor to file supplementary evidence (at [27]). In doing so he appositely opined that (at [27]-[28]): 27. In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations): Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps. Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant. 28 In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings.
4. In Benedict Industries (No 2) Craig J permitted the prosecutor to file further expert evidence in reply to the defendant's expert and in doing so, rejected the suggestion that this constituted an abuse of process (at [79]) or that the reasoning and conclusion of Biscoe J in Benedict Industries was inconsistent with the fundamental principles of case management (at [88]-[91]).
5. Before me, Benedict contended that excluding the evidence would be consistent with case management principles as applied to both civil and criminal matters. In support, it relied upon the decision in Australian Iron & Steel, emphasising the remarks of Gleeson CJ, and the observations of French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [5]).
6. In Australian Iron & Steel Gleeson CJ observed that a failure by the prosecutor to comply with a direction for the filing of evidence afforded a discretion in the trial judge to exclude that evidence (at 492). The power to control and supervise proceedings was, according to the Chief Justice, to prevent an unfairness leading to the prospect of refusing a prosecutor permission to lead evidence at trial in an appropriate case (at 493). In the Court below, Cripps J had held that if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment, such adjournment he was not willing to entertain (at 493C). The Chief Justice held that far from being an extraneous consideration, the regard to which the Court below had to the requirements of the efficient dispatch of the business of the Court was entirely proper and in keeping with modern principles of case management (at 493G). His Honour went onto state that (at 493-494A): The days have gone when Courts would automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grand or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs.
7. These principles were repeated, albeit in a civil context, in Aon (at [5] per French CJ). However, his Honour acknowledged that principles of case management "should not supplant the objective of doing justice between the parties according to law" (at [30]). To similar effect were the observation of the plurality who identified the paramount purpose of case management in the modern era as being the "just resolution of the proceedings" (at [98]). But the plurality went onto acknowledge that although the party should be given a proper opportunity to put their case, nevertheless there were limits upon this principle when delay and costs were taken into account.
8. From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Div 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave application of casement principles, having regard to the efficient dispatch of Court business.
9. There can be no doubt that the conduct of the prosecutor to date in the preparation of this hearing has been wanting. Notwithstanding that the prosecutor represented to the Court in December 2012, and confirmed in January 2013, that it had filed and served all of its evidence on liability, on the eve of the trial and more than two years after the prosecutor made this statement, it now seeks to rely on a plethora of additional affidavits necessary to prove a fundamental element in all three matters, namely, the absence of any relevant consent.
10. Even allowing for the reasonable explanation for the delay in serving Ms Whittingstall's affidavit of 22 May 2015 by reason of her illness, and even allowing for the unexpected discovery during the preparation of this evidence that further searches of council records were required, the prosecutor's conduct has, viewed in its totality, been unsatisfactory.
11. While it is not known precisely when the prosecutor discovered that Ms Hasham was not a reliable witness, it may be inferred that this was about the time of the directions hearing before the Court on 8 May 2015. Given that the hearing was due to commence in approximately four weeks' time, this was too late. I agree with the submission by Benedict that the prosecutor has had more than ample time to complete the preparation of its evidence on liability.
12. Benedict submitted that to permit reliance on the new evidence and to vacate the hearing would cause it to be prejudiced and in a way that could not be remediated by a suitable order as to costs. It proposed that the new evidence be excluded and the trial continued as listed.
13. It relied on the following evidence as to prejudice contained in Mr Walker's affidavit: 48. I am informed and believe that as a direct consequence of these long standing proceedings the defendant has been unable to secure a lease agreement from the Crown in respect of Lots 1 and 2. 49. I am informed and believe that the Council has advised the EPA of the position that it adopted for the first time in these proceedings that the development consent granted in 1967 only applies to Lot 1 and not to Lot 2. I am informed and believe that as a consequence of the Council putting this position to the NSW Environment Protection Authority (EPA) the EPA now refuses to issue an environment protection licence for the subject land for the scheduled activity 'crushing, grinding and separating' until such time as the position regarding the proceedings and the ambit of the development consent is clarified. 50. I am informed and believe that as a result of the defendant's inability to obtain a lease agreement and the EPA's refusal to issue an environment protection licence for the commercially valuable schedule activity of 'crushing, grinding and separating' for the site that it had no alternative other than to cease operations at the quarry in December 2014 until such time as these proceedings are resolved and it can re-evaluate the viability of future quarrying operations. 51. As a result of the closure of the quarry I am instructed that the defendant has had to cease negotiations with Holcim in respect of a commercial arrangement where the defendant would supply up to 500,000 tonnes per year of concrete sand at the price of $23-$24 per tonne for a period of 5 years (and a further option period of 5 years on top). The defendant could not guarantee the supply of the quantity given the uncertainty of the outcome of these proceedings and the ability to work the quarry commercially in the future. 52. I am also instructed that the defendant has been unable to submit a tender as a supplier for the new M5 component of the WestConnex project which would have required it to remove sandstone from the project site and transport it to the Sandy Point Quarry for crushing and sizing and then returning the product back to the new M5 component (being Beverly Hills to St Peters) the defendant considered it could otherwise have submitted a very competitive tender.
14. Mr Walker was cross-examined on this evidence.
15. The cross-examination was primarily directed to whether or not Benedict had advised either Crown Lands or the Environment Protection Authority ("EPA") of its belief that it had a consent to carry out its quarrying activities over both Lot 1 and Lot 2, or whether it had furnished those entities with a copy of any such consent if it existed. As I understand it, at this stage in the proceedings, Benedict relies on a consent granted in 1967 which it contends was given to a former operator of the quarry to carry out the quarrying activities on the land. This would answer some or all of the charges.
16. The front cover of the 1967 consent, a letter dated 3 April 1981 from the council to a former operator of the quarry indicating that approval had been given, and a map showing the area applied for by AH Walker (the person who lodged the development application giving rise to the 1967 consent) were all put to Mr Walker (and were subsequently tendered) in an attempt to elicit a concession from him that these measures had not been taken, and therefore that, any prejudice suffered by Benedict was of its own making. While Mr Walker conceded that neither step had been undertaken, he nevertheless remained steadfast in his evidence that Mr Stephen Beaman of the EPA had informed him that it would not issue an environmental protection licence for the land for the scheduled activity of "crushing, grinding and separating" until such time as these prosecutions had been finalised. I accept his evidence in this regard. I do not find that the prejudice referred to in paragraphs 48 and 49 of Mr Walker's affidavit has been caused by Benedict's conduct.
17. In relation to the prejudice deposed to in paragraphs 50, 51 and 52 this evidence discloses past prejudice. That is to say, prejudice that has already occurred and that will not be continued or exacerbated by the prolongment of these proceedings should the hearing be vacated. This evidence is largely immaterial.
18. Moreover, although Benedict has informed Mr Walker (see paragraph 50 of his affidavit) that it had no alternative other than to cease operations of the quarry in December 2014 until such time as the proceedings were resolved and it could re-evaluate the viability of any future quarrying operations, the consequences of this cessation and re-evaluation are not, in truth, known. Only limited weight is therefore afforded to this evidence.
19. Mr Walker additionally stated in cross-examination that Benedict is a family company comprising only two directors (T31.47); that he was generally aware of the profitability of the company; and that both directors of the company and the Chief Financial Officer had commented to him of the "crippling effect" that these proceedings are having "on them" (T32.28). However, Mr Walker agreed that he had not seen any financial records of the company or tested any of the statements made to him in this regard by asking for, or reviewing, the defendant's financial material (T32.20).
20. Finally, Mr Walker agreed in cross-examination that the defendant had declined to write to the Court Benedict Industries (No 2) to expedite the delivery of that judgment (T33.30).
21. The prosecutor submitted that viewed in its totality, the prejudice claimed by Benedict was minimal. Although I disagree, I cannot characterise it as severely as Benedict did.
22. On the evidence before me it cannot be said that further delay in the finalisation of these prosecutions would lead to severe or irremediable prejudice. Furthermore, I cannot conclude, on the material before the Court, that to vacate the hearing would cause the defendant to be prejudiced in a way which could not be remedied by suitable order as to costs.
23. No evidence, for example, was presented to the Court demonstrating that for each day of delay, the defendant was suffering a calculable financial loss. No records, financial or otherwise, were before the Court proving the harm alluded to in Mr Walker's affidavit. Undoubtedly, these proceedings, in their protracted form, are likely to have had an adverse impact on the company. The extent to which this is so, however, is not able to be ascertained on the material before the Court. It is not known, for example, what percentage of Benedict's business the quarry comprises. It is not known, for example, whether the quarry was profitable or viable prior to the commencement of the proceedings. Thus while I take into account the remarks of the directors and the Chief Financial Officer to Mr Walker, only limited weight is placed on them.
24. The Court has also had regard to the fact that there was no mention in the letter from Minter Ellison to the prosecutor's solicitors on 2 June 2015 of any prejudice. Had this been a material consideration, it is likely that it would have been referred to in the letter. Rather, it appears that it was the defendant's inability to meet the new evidence that was the cause of the defendant putting the prosecutor on notice that it would oppose the leave sought. Additionally, the Court has had regard to the fact that at no point did the defendant request in accordance with the Court's protocol for an earlier delivery of the judgment in Benedict Industries (No 2). Had it been seriously concerned with the ongoing delay in finalising the prosecutions, it would have done so.
25. In short, while I acknowledge that some prejudice would be caused by the further delay in the resolution of these proceedings, the prejudice is not so great that the new evidence ought to be excluded.
26. The prosecutor further argued that the defendant had possession of Ms Hasham's affidavit since early August 2013 and had taken no steps to meet this evidence notwithstanding that many of the searches that Ms Hasham had performed were similar to those undertaken by Ms Whittingstall. No subpoenas were issued, there was no request by Benedict to search the council's files or minute books, and no steps were taken to engage a suitably qualified expert to reply to the evidence. Thus it was either too late to do so now, or the defendant has no intention of doing so.
27. Again, it is not for this Court to define the forensic decisions the defendant may take in respect of this new evidence. As discussed above, there are several searches that Ms Hasham did not perform. Her description of the development consents she searched for in relation to the land the subject matter of the three prosecutions was, at best, ambiguous. It is entirely possible, therefore, that Benedict took the view that it could deal with her evidence by way of cross-examination alone. In any event, as found above, the new evidence is substantially more complex than that of Ms Hasham.
28. While the aphorism that 'justice delayed, is justice denied' is applicable in this instance, again, in my opinion, even having regard to the unsatisfactory conduct of the prosecutor, the harm likely to be suffered by Benedict in this regard is not sufficient to warrant the drastic measure of excluding the new evidence.
29. The prejudice that the prosecution would suffer if the new evidence was excluded would be potentially catastrophic. It would appear, on my initial understanding of the issues for determination in the proceedings (the prosecution has yet to formally open its case), that the prosecution would, absent this new evidence, be potentially unable to prove to the requisite criminal standard that Benedict did not have a relevant consent to carry out the activities the subject of the five charges. The implications of this are obvious for the continuation of the three prosecutions and all of the charges. There is a public interest in those who accused of criminal offence being brought to justice.
30. Equally, this public interest must be balanced against the delay and mismanagement by the prosecutor of its preparation of the proceedings to date, the prejudice occasioned to the defendant, and the consequential loss of valuable Court resources in having the hearing vacated.
31. On balance, however, I do not consider that the matters discussed above would, in the interests of justice and fairness as between the parties, warrant the refusal of leave to the prosecutor to rely upon the new evidence and to amend its Div 2A notices.
32. Nevertheless, the interests of justice demand that Benedict be afforded a reasonable period of time within which to properly consider and respond to this new evidence. To reiterate, I do not consider that it would be fair for leave be granted, the hearing commence and if necessary the hearing adjourn part-heard.
33. It follows that the leave granted is subject to an order that the hearing is to be vacated.

Costs

1. Although pressed by Benedict in its written submissions to make an order that the prosecutor pay its costs thrown away occasioned by the vacation pursuant to s 257F of the Act, the parties have requested that the question of costs be reserved and argued subsequently. I have acceded to this request.

Consequential Orders

1. The parties are to bring in short minutes of order for the future preparation and setting down for hearing of the three matters vacated as a result of the leave granted to the prosecutor.

Orders

1. The orders of the Court are therefore as follows: 1. leave is granted to the prosecutor to file the further affidavits and Div 2A notices referred to in its amended notice of motion; 2. the question of costs thrown away occasioned by the vacation of the hearing date and the costs of the prosecutor's application for leave are reserved; 3. the parties are to bring in consequential short minutes of order by 10.00am 15 June 2015 before Pepper J, for the final preparation setting down of all matters for hearing; and 4. the exhibits are to be returned upon the publication of these reasons on Caselaw.

Amendments 16 June 2015 - Amendment from Ms Peggy Dwyer to Dr Peggy Dwyer 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: 16 June 2015