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[2014] NSWLEC 48
Land and Environment Court (NSW)
2014-04-16
Pepper J, Mr P
Original judgment source is linked above.
The Prosecutor Applies for Leave to Reopen Its Case to Adduce Further Evidence 1This is an application by the prosecutor, Wingecarribbee Shire Council ("the council"), for leave to reopen its case to adduce further evidence in a contested criminal matter in Class 5 of the Court's jurisdiction. 2The application comes in circumstances where the council has closed its case and the defendant, Mr Paul O'Shanassy, has all but done the same. That is to say, save for this potential evidence, Mr O'Shanassy is ready to formally close his case and final oral submissions can commence. 3Although finely balanced, in my opinion, the council ought to be given the leave it seeks given the very special circumstances in which the evidence has come into the possession of the council.
The Evidence Sought to be Adduced 4The evidence is in the form of an affidavit of Mr Jim Allman, affirmed 15 April 2014, which essentially annexes two sets of photographs taken by him showing the state of Mr O'Shanassy's property on 15 and 25 November 2010, respectively. Mr Allman is an architect and the principal of Allman Johnson Architects ("Allman"). He had been engaged by Mr O'Shanassy to produce architectural plans for a proposed extension to Mr O'Shanassy's dwelling in November 2010. 5Each set of photographs had been marked for identification by the council during Mr O'Shanassy's cross-examination on 15 April 2014, in the following circumstances (T833.03-835.05): Q. Mr O'Shanassy, I want to show you a bundle of photos of the area to the east of your house. Can I just show these photos to you. Thanks very much. I want to suggest to you that these photographs were taken on 15 November 2010. Do you agree that they depict the hillside and ridge to the east of your house as at 15 November 2010, Mr O'Shanassy? A. Sorry, are you asking me to assume that or are you asking me-- Q. I'm asking you-- A. No. Q. --whether you agree? A. No, I don't. Q. Because it's your evidence, isn't it, that the hillside to the east of your house had been reduced to about 800 millimetres in depth by then? A. That's right. Q. But you agree, don't you, if you see the numbers on the photos, see photograph 10? A. Yes, I do. Q. That's showing at some point in time a substantial hillside and ridge to the east of your house, well in excess of 800 millimetres, isn't it? A. It's showing a ridge in excess of 800, yes. Q. If you just look at photo 11, you see the northern extent of that same landform? A. That's right. Q. Photograph 12 you see, looking to the east, you can clearly see the ridge that's the same in appearance or consistent in appearance with the photos that are exhibit L, you know, the ones that were taken with the Peugeot. You remember those photos? A. Yeah, the - yeah, L, yes. Yeah, the photographs, yes. Q. The photos of the ridge depicted in photos 12, 13, 14 and 15 and 16, they're all consistent with the photos showing the ridge that are in exhibit L, that is, the photos showing the car. Do you agree with that? A. They're consistent with that, yes. Q. If the hillside did look like that on 15 November 2010, then that would mean that the evidence you've given to this court is untrue, wouldn't it? A. 15 November 2010? Q. Yes. A. I'd say so, yes. HOWARD: Could that bundle be marked for identification? HER HONOUR: Photos numbered 10, 11, 12, 13, 14, 15, 16, depicting defendant's house and ridge adjacent to house will be MFI 3. Thank you. MFI #3 PHOTOGRAPHS NUMBERED 10 16 DEPICTING DEFENDANT'S HOUSE AND RIDGE ADJACENT TO HOUSE HOWARD: Please the court. Q. I just want to show you now some photographs that are numbered 18 to 23, Mr O'Shanassy. I want to suggest to you that these photos are photos showing the hillside and ridge to the east of your house as at 25 November 2010. What do you say to that? A. Sorry, what's the question? Q. I want to suggest that these photos show the ridge and hillside as it existed to the east of your house on 25 November 2010. What do you say to that suggestion? A. Are you asking me is that a depiction of the hill that was there on that date? Q. I'm suggesting to you that it is, that the hill that existed to the east of your house on 25 November is as shown in those photos. A. No, I disagree. Q. They're consistent with the photos that are now MFI 3 that I suggested to you were taken on 15 November 2010, aren't they? A. The earlier bundle you've just shown me? Q. Yes. A. November 2010, are they consistent? Yes, they are, yeah. Q. They're consistent with the photos which are exhibit L, aren't they? A. Which are the Peugeot photos? Q. Yes. A. Yes. Q. If these photos depict the ridge line as it existed on 25 November 2010, then your evidence that you've given about what the ridge line was at that date would be untrue. A. Substantially, yes, because I say the hill - the ridge line was removed. Q. Why do you use the word "substantially"? A. Well, because the Q. It'd just be straight out untrue if these photos were taken on that date, wouldn't it? A. Because it doesn't show all of the ridge, Mr Howard. The ridge, you've got one dimension to the ridge, but there'd be definitely a conflict between these photographs as of this date and what I say was there at this date, yes. HOWARD: Could those photos be marked for identification? 6Mr Allman's affidavit also annexes a subpoena that reveals that the photographs ought to have been produced to the council on 17 September 2013. It is not known why the photographs were not produced on that occasion given that they clearly fell within the terms of the subpoena. 7The photos were only recently discovered pursuant to an enquiry by the council's solicitors on 14 April 2014, to check that all of the photos caught by the subpoena had been produced. The enquiry was prompted, in part, it appears, by the late filing of an affidavit by Mr O'Shanassy on 14 April 2014. 8It is worth recalling at this juncture that Mr O'Shanassy has been charged with having carried out excavation works on his property without development consent, in contravention of ss 76A and 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") and cl 7.3(2) of the Wingecarribee Local Environmental Plan 2010. 9A development consent was granted by the council to Mr O'Shanassy in 2001 in relation to the original construction of his house on Lot 11 DP 1010798 ("the land"), subject to conditions, viz, that natural ground levels not be altered, that the ridgeline of the highest point of the roof not exceed 105.5 metres, and that no trees be lopped, removed, damaged or destroyed without council consent. Mr O'Shanassy carried out the construction of his house during 2002-2003. 10It is alleged by the council that Mr O'Shanassy began new and unauthorised development works in June 2011, namely, large-scale earthworks that involved the excavation of clay and rock having a volume estimated to exceed 16,000m³, as well as the removal of several large eucalyptus trees. The council alleged that these excavation works removed a ridgeline adjacent to the house for the purposes of enabling a significant extension to the house to be undertaken in the future and to provide uninterrupted views of Sydney. 11The charge as set out in the amended summons is as follows in paragraph 1: 1. An order under section 246 of the Criminal Procedure Act 1986 that Paul Gerard O'Shanassy ("the Defendant") appear before a Judge of the Court to answer the charge that between about June 2011 and continuing up until about May 2012 at Mittagong in the state of New South Wales he committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 in that he did the following thing which was forbidden to be done by section 76A(1)(a) of the Environmental Planning and Assessment Act 1979: He did carry out development on land to which an environmental planning instrument applied being development which pursuant to the environmental planning instrument may not be carried out except with development consent where a development consent had not been obtained and was not in force in respect of the development. Particulars of the Offence a) The land at which the offence took place was: Lot 11 DP 1010798, known as No. 621 Range Road, Mittagong; Lot 12 DP 1010798, known as No. 635 Range Road, Mittagong; Lot 1 DP 878237 known as No. 601 Range Road, Mittagong; and Lot 4 DP 878237 known as No. 30 Nannas Lane, Mittagong Hereafter referred to as "the Land". b) The Wingecarribee Local Environmental Plan 2010 ("the LEP"), being an environmental planning instrument, applied to the Land at the time of the offence. c) The development carried out on the Land required development consent pursuant to clause 7.3 the LEP but was carried out without development consent having been obtained or being in force. d) The development comprised earthworks, namely excavation and filling of clay and rock having a volume estimated to exceed 16,000m3 by the use of heavy machinery and associated works including removal of trees and vegetation. e) The Defendant was the sole proprietor of Lot 11 DP 101798 at all material times. The said development was carried out by civil works and excavation contractors who were retained by the Defendant for the purpose of carrying out the development and who were instructed by the Defendant to carry out the development. 12Plainly enough, the council bears the onus of proving that Mr O'Shanassy carried out the earthworks during the period specified, namely, between June 2011 and continuing up to May 2012 ("the charge period"). 13The period in which the earthworks occurred is a, if not the, matter in dispute in the proceedings, with Mr O'Shanassy claiming that most of the impugned earthworks occurred at an earlier point in time outside of the charge period. 14Part of the evidence relied upon by the council to demonstrate that the alleged unlawful earthworks occurred during the charge period are photos taken by Mr O'Shanassy's estranged wife, Ms Lana Lake. The photos are of a black Peugeot convertible car and were asserted to be taken by her in early 2011 for the purpose of selling the car (Ex L). The photos clearly depict the ridgeline the subject of controversy in the proceedings to be in existence as at that date. The photos are inconsistent with Mr O'Shanassy's evidence. He disputes that they were taken at the time stated by Ms Lake. 15As is apparent by the above background, if the photos attached to Mr Allman's affidavit are admitted into evidence and the council is able to successfully demonstrate that they were taken on the dates alleged by Mr Allman, Mr O'Shanassy's credit may be seriously adversely impacted upon the issue of when the relevant earthworks took place. 16The preparation and hearing of the proceedings has been complicated by the fact that there have been several sets of solicitors representing Mr O'Shanassy, and that for the entirety of the presentation of the council's evidence and for part of his cross-examination, Mr O'Shanassy was self-represented. 17The procedural history of the matter is important to the council's application to reopen its case, and therefore requires some elaboration. 18Pursuant to Div 2A of the Criminal Procedure Act 1986 ("the CPA"), the council served on Mr O'Shanassy its Statement of Facts, which relevantly sought his agreement to the fact that the earthworks were carried out by him during the charge period (fact 18) and that they altered the existing ground level by more than 800mm (fact 30). 19Paragraph 59 of the Statement of Facts also relevantly stated: On 1 October 2011, Joe Lorincz walked onto Lot 11, approached the defendant and had a conversation to the following effect: Joe Lorincz said: "What is going on here with all this work?" The defendant said: "I am doing a big extension to my house." Joe Lorincz said: "But how did you possibly get permission to fell all these magnificent trees? Have you got permission?" The defendant said: "Council had to give me permission so I could do the extension". Joe Lorincz said: "But I don't understand. I know Council's policy about trees and I know first hand Council's ridgeline policy DCP 53. I wanted to build on a block in Lees Road on the ridgeline and there was no way in the world I could get permission. How did you get permission to remove the entire ridge?" The defendant said: "Council had no alternative but to give me permission, there was no way to do the extension otherwise". Joe Lorincz said: "I'm sorry, but I just can't understand how you got permission. Can I please see the approved drawings?" The defendant said: "Okay, come into the house." 20On 5 July 2013, Maddocks Lawyers, representing Mr O'Shanassy, served its response under s 247K of the CPA ("the first s 247K notice"), responding to the council's Statement of Facts in the following relevant terms: 18. Not admitted. The Defendant says that the only earthworks carried out on Lot 1 and Lot 4 during the charge period were works as set out as Proposed Interim Measures in the report by Rein Warry & Co provided to and approved by Wingecarribee Shire Council (Council) on or about 3 November 2011 (Rein Warry Report), or was exempt development. ... 29. Not admitted. Some earthworks were undertaken by William Symons. However, the instructions to William Symons were to undertake earthworks that were less then 800mm. 30. Disputed fact. Other than the Proposed Interim Measures in the Rein Warry Report, the earthworks carried out during the charge period did not alter the existing ground level by more than 800mm. ... 34. Disputed fact. Both the approved plans forming part of the Dwelling Consent and the Construction Certificate plans dated 20 March 2002 show excavation required in relation to the dwelling consent. Other than the Proposed Interim Measures in the Rein Warry Report the earthworks carried out during the charge period did not alter the existing ground level by more than 800mm. ... 38. Disputed fact. To the extent that the earthworks carried out during the charge period were not part of the Development Consents, the Earthworks undertaken by the Defendant, or on instructions by the Defendant, were not to alter the existing ground level by more than 800mm. ... 59. Disputed fact. The Defendant takes issue with this statement. The Defendant denies that the conversation took place as stated. The Defendant says that he said to Joe Lorincz words to the following effect: The earthworks are simply the final stages of works to complete the works required to construct my house. They are nothing more than what began in 2002. Given my limited financial means, I undertook these earthworks progressively over the years. When I obtained consent for my house, the Council and I had difficulty deciding where my house should be located. This was largely due to the significance of the adjoining property Luggie Bank, and the Council's policy of not allowing building on the ridge line. When I obtained consent for my house the Council put a condition that required the roofline of the residence not to exceed RL 106 with the floor level being a baseline of RL 100. The Council's consent required a 6 metre cut at the location of the residence in order for the house to be built. After the house was built a number of mature eucalypt trees had been damaged in gale force winds. I got advice that they were dangerous and beyond saving. 21Then on 10 December 2013, Agility Legal Pty Limited, Mr O'Shanassy's new lawyers, served an "amended" s 247K notice ("the second s 247K notice") on the council. The notice stated: We attach the Defendant's amended Statement in relation to the Prosecutor's Statement of Facts. 22The second s 247K notice went on to state that in relation to the Statement of Facts served by the council: We refer to the Defendant's amended Statement in relation to the Prosecutor's Statement of Facts (attached). 23Significantly, the second s 247K notice did not state that it repeated the factual contentions stated in the first s 247K notice, rather it said that: 2. The defendant does not admit the facts set out in paragraphs 18-34 which are in dispute. 24In Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 the Court made the following observation based on exchanges that took place during the hearing of the applications by the council to set aside parts of the subpoenas the subject of that judgment (at [8]): 8 It appears to be Mr O'Shanassy's defence to the charge that, either the allegedly unlawful works were carried out earlier, outside the charge period, or that the works comprised the interim works carried out with the permission of the council. 25After the council formally closed its case, Mr O'Shanassy, as he was entitled to do, filed and served an affidavit sworn by him on 21 March 2014 ("the first O'Shanassy affidavit"). The affidavit was almost exclusively responsive to the affidavits served by the council, including the affidavits affirmed by Mr Joe Lorincz. It made no mention of the claim that the earthworks had taken place at an earlier point in time outside the charge period. 26In his first affidavit, Mr O'Shanassy denied that a conversation took place in the terms asserted in paragraph 59 of the council's Statement of Facts (which was paragraph 16 of Mr Lorincz's affidavit affirmed 11 September 2012, and which was denied by Mr O'Shanassy in his first affidavit at paragraphs 59-61). 27On 21 March 2014, during Mr O'Shanassy's cross-examination, the following exchange took place (T679.10-680.23): Q. Mr O'Shanassy, I want to suggest to you that the removal of the physical feature that you can see in that photograph I've shown you increased the capacity to view the lights of Sydney from your property at 621 Ranges Road, Mittagong. A. At what time? Q. As compared with what that capacity was when the ridge was present. A. If you're talking about 2005-6, yes. Q. So, Mr O'Shanassy, do I take it from that answer that you accept that the removal of that structure, that ridge or hillside to the east of your house, did increase the capacity to see the lights of Sydney from your property but that that capacity increase was something that occurred in 2005 or 2006? Is that what you're saying? A. The vista from that eastern aspect of the house increased the - the degrees of panorama increased from looking across Colo Vale and Katoomba through to looking due east to Wollongong, yes. Q. Are you or are you not suggesting to this court that there was a major excavation of that ridge and hillside in some period prior to the charge period? A. Sorry, ask the question again? Q. Are you or are you not suggesting to the court that there was a major excavation of that ridge and hillside to the east of the Ballingarry house in a period prior to the charge period? A. Yes there was. There was continuous changes to that level to the east of the house. Q. Are you or are you not suggesting that there was an exercise of excavation larger than what Bill Symonds undertook in the period some time from around September 2011 in the year 2005 and 2006? A. Between 2003, beginning at 2003 when, when we took occupancy of the house, there was a, a excavation on that, on that plain or on that perspective, yes. Right through. Q. Sorry? Was it in 2005 or 2006? A. It was, it began in 2003 after we moved in and continued over time until 2000, 2007 and eight was the, was the last time we had excavators in there. Q. What? You had an excavator operator permanently parked at the back of your house did you? A. No. Not permanently parked there. Q. What do you mean by continuously? A. Well as, as we could afford paying contractors when, when I was sitting on a Case front end loader, there was a, there was earthworks and landscaping and various earthmoving going on in that quadrant of, of the property. Yes. Q. You see the ridge there in the photo that I've given you? A. Yep. Q. At page 12 of Mr Webb's affidavit to the east, shown at the east of Ballingarry house? A. The, the other photograph I have here, yes. Yeah. Q. That's the photograph that's got a 12? It's a black and white photo showing the ridge to the east of the Ballingarry house is it? A. Yes, that's right. Q. When was that removed, according to you? A. Between the period of whenever this photo was taken and 2010. Q. What, in little increments? Is that seriously your evidence Mr O'Shanassy? A. That is seriously my, my evidence, Mr Howard, yes. 28Under cross-examination, Mr O'Shanassy then proceeded to detail when the earthworks took place and by whom. Again, none of this evidence was contained in his first affidavit. 29The proceedings, having exceeded their allocated hearing time, were adjourned on that day to 14 April 2014, by which time Mr O'Shanassy had secured the legal representation of Mr Marcus Pesman SC and Ms Corrina Novak of counsel. When the hearing was adjourned part-heard, Mr O'Shanassy's cross-examination had not been completed. 30On the date of the resumption of the hearing, Mr O'Shanassy sought, and obtained, leave to file in Court and read his second affidavit. Apart from reserving its position to object to parts of the second O'Shanassy affidavit, the reading of the affidavit was not opposed by the council. The cross-examination of Mr O'Shanassy then resumed. 31The second O'Shanassy affidavit, in effect, details the earthworks undertaken by him on his property between April 2002 and late 2010, including the removal of the ridgeline the subject of the charge. That is to say, it provides further information consistent with the evidence Mr O'Shanassy gave during cross-examination.
Legal Principles Governing the Granting of Leave to a Prosecutor to Reopen Its Case 32The legal principles governing a prosecutor seeking leave to reopen its case after it has closed are well known. In this Court, in Wollongong City Council v Ensile Pty Limited; Wollongong City Coucil v Hogarth (No 7) [2008] NSWLEC 202 Jagot J succinctly summarised the principles as follows (at [13]): 13 The applicable principles are as follows. (1) The trial judge has a discretion to allow evidence in reply but it has been described as one available only where the "circumstances are very special or exceptional" (The Queen v Chin (1984) 157 CLR 671 at 676 and 684). (2) The guiding principle is that the prosecution must present its case completely before a defendant is called upon for a defence (Chin at 676 and 684; Shaw v The Queen (1952) 85 CLR 365 at 379 - 381 and 383; Killick v The Queen (1981) 147 CLR 565 at 568 - 572). (3) Examples of very special or exceptional circumstances might include where the prosecution could not have anticipated the defendant's evidence about a matter where the onus did not lie on the prosecution or where the evidence was not available when the prosecution closed its case or involves a purely formal, technical or non-contentious matter (Chin at 667 and 684). However, courts have avoided prescribing any strict formula beyond the observation that evidence the prosecution could reasonably have foreseen or which would have been covered if the prosecution's case had been strictly proved is generally not seen as falling within the scope of a very special or exceptional circumstance (Chin at 684). (4) Where the onus to prove an exculpatory matter lies on the defence a prosecutor may call evidence rebutting the matter "provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue" (Chin at 677). Irrespective of the concept of splitting a case, if the nature of the defence's evidence sought to be rebutted should have been known to the prosecutor "so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence" (Chin at 685). (5) In summary: The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence (Chin at 685 - 686, emphasis in the original). 33In Morris v R [2010] NSWCCA 152 they were re-stated by McClellan CJ at CL, quoting from the seminal decisions in Shaw v R ([1952] HCA 18; (1952) 85 CLR 365 at 380) and R v Chin ([1985] HCA 35; (1985) 157 CLR 671 at 676) to be (at [26]-[28] and [30]): 26 The principles relevant to an application by the Crown to reopen its case are well known. In R v Chin (1984-1985) 157 CLR 671 at 676 Gibbs CJ and Wilson J said: "The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen; Killick v The Queen and Lawrence v The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen." See also Rend v R [2006] NSWCCA 41. 27 Although the trial judge referred to Chin and identified the relevant passage his Honour concluded that there was a two stage test which the Crown must satisfy being, at the first stage, that the circumstances are "very special or exceptional" and "secondly, whether the Crown ought reasonably to have foreseen, at some earlier stage than when the applicant was made, the need to call such evidence." 28 It was submitted that his Honour's understanding that Chin required a two stage approach and imposed an inappropriate and rigid process when considering the issue was not correct. Reference was made to the joint judgment of Dixon, McTiernan, Webb and Kitto JJ in Shaw v R (1952) 85 CLR 365 at 3890 [sic] where their Honours said: "It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence." ... 30 In my view the appellant's submission should be accepted. The question of whether the circumstances are "very special" or "exceptional" is to be determined having regard to all of the relevant circumstances. As the passage which I have extracted from Chin makes plain one of those circumstances, which may itself be determinative is whether the need to call further evidence "ought reasonably to have been foreseen." That issue is not to be resolved as a separate question although of considerable significance when determining whether the application to reopen should be granted. 34I respectfully adopt the articulation of the principles by both McClellan CJ in CL and Jagot J. 35The relevant question therefore is whether the council has demonstrated that the circumstances are "very special" or "exceptional", thereby warranting the grant of leave it seeks?
The Council's Position 36The council submitted that the circumstances were sufficiently special or exceptional to warrant the grant of the leave to reopen sought because of: (a)first, the need to call this further evidence ought not reasonably to have been foreseen because it was not until the cross-examination of Mr O'Shanassy that the claim that he had excavated the ridgeline over the course of several years at some earlier point in time to that specified in the charge period was made known to the council; (b)second, the late filing of the second O'Shanassy affidavit containing evidence of which the council was previously unaware to prove the defence referred to above, made for the first time by Mr O'Shanassy during his cross-examination; and (c)third, the very late production of the photos by Mr Allman.
Mr O'Shanassy's Position 37In response, Mr O'Shanassy submitted that the high threshold had not been met because: (a)first, the council ought reasonably to have foreseen the need to call this very sort of evidence insofar as it knew that it bore the onus of proving that the earthworks occurred within the charge period, and moreover, it had been put on notice on several occasions (for example, the first s 247K notice and Mr O'Shanassy's denials of the conversation attributed to him at paragraph 16 of Mr Lorincz's affidavit) that the ridgeline had been substantially excavated much earlier, and that during the charge period Mr O'Shanassy did no more than excavate it by a further 800mm. It was therefore not correct to assert, as the council did, that it had not been notified of this aspect of Mr O'Shanassy's defence until 21 March 2014. The council should have accordingly anticipated this defence by Mr O'Shanassy (and in fact did, as demonstrated by the tender of Ex L) and adduced all evidence necessary to meet it prior to closing its case. The photos annexed to Mr Allman's affidavit were no different to those contained in Ex L in this regard. Thus to put it in the language of Chin (at 684-685), Mr Allman's photographs were evidence that would have been covered if the council's case had been fully and strictly proved; and (b)second, the second O'Shanassy affidavit was irrelevant because it was no more than an affidavit in re-examination, which the council had the benefit of in written form, rather than the evidence being adduced orally.
Leave to Reopen its Case Should be Granted to the Council 38Having regard to the material contained in the first s 247K notice and the observation by the Court in O'Shanassy (No 2), it cannot be said that the council was not notified of Mr O'Shanassy's claim that the ridgeline had been substantially excavated at some earlier point in time prior to the charge period. It is a claim he has consistently maintained, albeit not always to the level of particularity he disclosed under cross-examination. 39To the extent that the council submitted that the second s 247K notice abrogated the factual claims made in the first s 247K notice, I do not agree. The statements made by Mr O'Shanassy in the second s 247K notice are too equivocal to draw this inference. In any event, if the council was labouring under any confusion as to whether or not the claims made by Mr O'Shanassy in his first s 247K notice were or were not being maintained, it should have sought clarification from Mr O'Shanassy, who remained legally represented until very shortly before the hearing commenced. 40The council therefore ought reasonably to have foreseen the need to call evidence to rebut this aspect of Mr O'Shanassy's defence, which it did, as evidenced by the photos taken by Ms Lake at Ex L. 41However, this does not, in my view, mean that the council ought reasonably to have foreseen the need to tender the photographs annexed to Mr Allman's affidavit. Put simply, it could not have reasonably foreseen that which it did not know was in existence, and moreover, which it could not have reasonably known was in existence. 42The fact remains that it is the failure of Mr Allman to produce the photos as he was required to do in 2013 that has resulted in the necessity for this application and not a failure by the council to appreciate the need for such evidence. If required to do so, I readily infer that had the photos been available to the council, they would have been adduced by it as part of its case in chief, just as the photos comprising Ex L were. 43This is not a case of the council having been alerted to the possibility of this evidence, failing to obtain it, or, having obtained it, failing to adduce it. 44Although Mr O'Shanassy was critical of the council for not pursuing Mr Allman's photographs earlier than April 2014, given that the subpoena was served and that documents were produced in September of 2013, this criticism is unfounded. In my opinion, the council acted with all due haste upon receipt of Mr O'Shanassy's second affidavit, which was, as stated above, in part, the reason for the enquiry made of Mr Allman. 45Having said this, consistent with my reasoning above, neither the content nor the late service of the second O'Shanassy affidavit amounts to very special or exceptional circumstances justifying the grant of leave to re 46open. As Mr O'Shanassy properly characterised it, his second affidavit is, given the manner in which his evidence unfolded, no more than evidence that would otherwise have been given by him in re-examination. 47To summarise, it is the late and totally unforeseen production of the photographs by Mr Allman that constitutes the very special or exceptional circumstances that permits leave to the council to reopen its case to adduce further evidence to be granted.
Orders 48The Court therefore grants leave to the council to reopen its case to read the affidavit of Mr Jim Allman affirmed 14 April 2014. Upon publication of this judgment, the exhibits on the application are to be returned.
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: 28 April 2014
Wingecarribee Shire Council
O'Shanassy
[1952] HCA 18
(1985) 157 CLR 671
(1952) 85 CLR 365
(1984) 157 CLR 671
(1981) 147 CLR 565