Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWLEC 136

Land and Environment Court New South Wales

Medium Neutral Citation: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWLEC 136 Hearing dates: 25 June and 2 July 2020; written submissions on 8 and 10 September 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [190] Catchwords: SUBPOENA - application to set aside subpoena issued to Roads and Maritime Services - whether the issuing of a subpoena to a third party when that party has also been issued a statutory notice to produce the same documents constitutes an abuse of process - consideration of whether the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) CLR 477 applies by analogy - appropriate to apply the High Court's decision by analogy - issue of subpoena not an abuse of process - application to set subpoena aside as abuse of process rejected SUBPOENA - subpoena said to be invalid as founded on documents unlawfully obtained via notice pursuant to s 119J of the Environmental Planning and Assessment Act 1979 - consideration of bases potentially available for the valid issuing of a notice pursuant to s 119J - s 119J notice validly issued - subpoena validly issued on this basis - second basis for issuing subpoena founded on information provided to a council officer by an employee of the Defendant during the course of a site inspection - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - third basis for issuing subpoena founded on information provided to a council officer by an employee of Roads and Maritime Services - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - fourth basis for issuing subpoena founded on documents obtained pursuant to an application to Roads and Maritime Services under the Government Information (Public Access) Act 2009 - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - application to set subpoena aside as abuse of process rejected on these bases SUBPOENA - application to restrict documents to be produced pursuant to subpoena to those documents relating only to the Defendant's activities on the dates nominated in each charge - Prosecutor has given required notice that it intends to rely on coincidence and tendency evidence arising from documents relating to the Defendant's activities on the other dates for which documents have been sought - not appropriate to restrict access to documents to limited dates - whether broader range of documents should be admitted at trial for coincidence or tendency purposes a matter for trial judge - documents to be produced to Prosecutor in satisfaction of subpoena not to be limited to dates nominated in the two charges Legislation Cited: Clean Waters Act 1970, s 29(2)(a) Environmental Planning and Assessment Act 1979, ss 76A(1)(b), 119C, 119J, 125(1) and 127A Environmental Planning and Assessment Regulation 2000, r 284 Evidence Act 1995, ss 97, 98, 99, 101 and 192A Government Information (Public Access) Act 2009 Cases Cited: Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Botany Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 Director of Public Prosecutions v Lazzam [2016] NSWSC 145 Environment Protection Authority v Caltex Refining Co Pty Limited (1993) CLR 477; [1993] HCA 74 Gett v Tabet (2009) 254 ALR 504 National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 Port Macquarie-Hastings Council v Mansfield (2019) 239 LGERA 240; [2019] NSWCCA 7 Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107 Regina v Saleam [1999] NSWCCA 86 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] HCASL 86 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74 Ying v Song [2009] NSWSC 1344 Zhang v Woodgate and Lane Cove Council (2015) 208 LGERA 1; [2015] NSWLEC 10 Texts Cited: Land and Environment Court COVID-19 Pandemic Arrangements Policy Category: Procedural and other rulings Parties: Snowy Monaro Regional Council (Prosecutor) Tropic Asphalts Pty Ltd (Defendant) Representation: Counsel: Mr C Ireland, barrister (Prosecutor) Mr T Hale SC/Mr D Robertson, barrister (Defendant)