Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd [2022] NSWLEC 55 Hearing dates: 26, 27 April 2022 Date of orders: 28 April 2022 Decision date: 28 April 2022 Jurisdiction: Class 5 Before: Pain J Decision: See [72] Catchwords: CRIMINAL PROCEDURE – pre-trial production of documents in three categories sought by Defendant from Prosecutor – notice of motion dismissed Legislation Cited: Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) Criminal Procedure Act 1986 (NSW), ss 247E, 247J, 247I, 247O Evidence Act 1995 (NSW), ss 117, 119, 122, 131A Interpretation Act 1987 (NSW), s 30 Native Vegetation Act 2003 (NSW), s 42 Cases Cited: Akins v Abigroup Ltd (1998) 43 NSWLR 539; [1998] NSWCA 8 Attorney-general (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 86 FCR 215; [1998] FCA 849 Carroll v Attorney General for NSW (1993) 70 A Crim R 162 Dubbo City Council v Barrett [2003] NSWCA 267 Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159 Lipton v R [2010] NSWCCA 175 Northern Territory v Maurice (1986) 161 CLR 475; [1986] HCA 80 Perish v R [2015] NSWCCA 237 R v Baladjam (No 28) [2008] NSWSC 1449 R v Saleam (1989) 16 NSWLR 14 Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd et al (No 6) [2021] NSWLEC 28 Category: Procedural rulings Parties: Secretary, Department of Planning and Environment (Prosecutor) Namoi Valley Farms Pty Ltd (Defendant) Representation: Counsel: D Buchanan SC with A Garsia J Ireland QC with A Connolly Solicitors: Department of Planning and Environment, Legal Branch McGirr Lawyers File Number(s): 2019/81751 Judgment 1. The Defendant has pleaded not guilty to a charge of clearing native vegetation on land in Walgett Shire and Narrabri Shire (the property) between 11 April 2013 and 23 April 2014. The hearing on the Defendant's liability has been set down from 26 April 2022 to 9 May 2022. The Defendant has recently filed a Notice of Motion (NOM) dated 8 April 2022 seeking access to a number of documents. This NOM was heard on the first two days of the allocated hearing. 2. The issue underlying the NOM is whether the prosecution was commenced within the two-year timeframe required by s 42(4) of the Native Vegetation Act 2003 (NSW) (NV Act). The further amended summons identifies that the relevant date an authorised officer being Mr Minehan became aware of evidence of illegal clearing was 15 March 2017. The original summons was filed on 14 March 2019. Defendant's Notice of Motion dated 8 April 2022 1. The Defendant's notice of motion dated 8 April 2022 stated as follows: The Defendant moves the Court for the following orders: … 2. An order that within 3 days the Prosecutor produce to the Court and provide to the Defendant copies of the following: a. Each of the documents identified in the Schedule [omitted] to this Notice of Motion. b. In respect of the conference held on 9 March 2022 attended by or involving Mr Andrew Buchanan SC, Mr Alex Rollason, Ms Anna Garsia, Mr Matt Wright and Ms Shahuna Karunakaran in un-redacted form: i. all handwritten or typed notes recording any part of the conference; ii. all audio or audio visual recordings of all or any part of the conference; and iii. any computer-generated record of all or any part of the conference. 3. An order that within three days the prosecutor produced to the court for the period between 1 March 2017 to 31 March 2017 all records of access exercised by:- a. Steven Navan; or b. David Minehan to records contained in the computer system relating to any of the properties identified in the amended summons. … 1. In light of the evidence the only category arising for the purposes of par 2(b) is (i). 2. The schedule referred to in par 2(a) identifies 10 categories of documents sought for a seven-month period. Native Vegetation Act 2003 (NSW) 1. Some provisions of the NV Act apply to these proceedings despite its repeal on 25 August 2017 by virtue of s 30 of the Interpretation Act 1987 (NSW) combined with the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW). The proceedings were commenced on 14 March 2019. The relevant provision of the NV Act for this notice of motion is s 42, which stated as follows: 42 Proceedings for offences (1) Proceedings for an offence under this Act or the regulations are to be dealt with summarily before: (a) a Local Court, or (b) the Land and Environment Court. (2) The maximum monetary penalty that may be imposed by a Local Court in proceedings for an offence under this Act or the regulations is the maximum monetary penalty provided by this Act in respect of that offence, or 100 penalty units (including any daily penalty), whichever is the lesser. (3) Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed. (4) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. (5) If subsection (4) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established. (6) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act. Criminal Procedure Act 1. The following provisions of the Criminal Procedure Act 1986 (NSW) (CP Act) were referred to in argument: Part 5 Summary jurisdiction of Supreme Court and other higher courts … Division 2A Case management provisions and other provisions to reduce delay in proceedings … 247E Notice of prosecution case to be given to defendant (1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following— (a) a copy of the application for any appearance order relating to the defendant, (b) a statement of facts, (c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings, (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings, (e) if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings, (h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant, (j) a list identifying— (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor's possession and is not in the defendant's possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness. … 247I Court may order preliminary disclosure in particular case (1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so— (a) order that the prosecutor is to give to the defendant notice in accordance with section 247J, (b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution's notice in accordance with section 247K, (c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L. (2) The court may order preliminary disclosure under this section on the application of any party or on the court's own initiative. (3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner. (4) The court may limit preliminary disclosure to any specified aspect of the proceedings. (5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court. 247J Prosecution notice—court-ordered preliminary disclosure For the purposes of section 247I (1) (a), the prosecution's notice is to contain the following— (a) the matters required to be included in the notice of the prosecution case under section 247E, (b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant, (c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor. … 247N Sanctions for non-compliance with preliminary disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division. (2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division. (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment. (4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division. (5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised). … 247O Disclosure requirements are ongoing (1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens— (a) the defendant is acquitted of the charges to which the proceedings relate, (b) the prosecution is terminated, (c) the defendant is sentenced for the offence to which the proceedings relate. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable. Legal professional privilege provisions 1. The following provisions of the Evidence Act 1995 (NSW) (Evidence Act) were referred to by the parties in argument: Part 3.10 Privileges Division 1 Client legal privilege 117 Definitions (1) In this Division— client includes the following— (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is— (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting, (e) if a client has died—a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. confidential communication means a communication made in such circumstances that, when it was made— (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared— (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. party includes the following— (a) an employee or agent of a party, (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting, (c) if a party has died—a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act. … 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. … 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if— (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because— (a) the substance of the evidence has been disclosed— (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers). … Division 4 General 131A Application of Part to preliminary proceedings of courts (1) If— (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following— (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. Evidence 1. The NOM is supported by an affidavit of Mr McGirr solicitor for the Defendant dated 8 April 2022. The Exhibit to that affidavit DM-1 became Exhibit 1. Mr McGirr identifies as a live issue whether the prosecution was commenced within the two years required from the time an offence comes to the attention of an authorised officer. A number of subpoenas were sent to the Prosecutor's employees including officers Mr Naven and Mr Minehan in October 2019. The Prosecutor's NOM to set these aside was heard on 21 April 2020. Amended subpoenas were subsequently issued on 24 April 2020 with no documents produced. The Defendant's NOM to have the proceedings declared out of time was not proceeded with on 13 November 2020. A plea of not guilty was then entered. Pre-trial directions under s 247E of the CP Act were made and the Prosecutor filed and served an amended notice of prosecution case on 18 December 2020. The hearing dates commencing on 16 September 2021 were vacated due to COVID-19. The Prosecutor served without leave further evidence on numerous dates on and after 2 March 2022, including a further affidavit of Mr Naven affirmed on 28 March 2022 (Naven 2) and a further affidavit of Mr Minehan sworn on 1 April 2022 (Minehan 2). The email sent to Mr Minehan by Mr Naven on 15 March 2017 which contains information about the property then identified as Clifton and Drildool project was also provided by the Prosecutors to the Defendant without notice. Mr McGirr annexed Minehan 2 and Naven 2 to his affidavit. 2. In Minehan 2, Mr Minehan attests to receiving the email dated 15 March 2017 sent by Mr Naven and other emails of 17 March 2017 and 23 March 2017. At pars 9-18 he identifies what topics the email of 15 March 2017 refers to under the project title "CliftonDrildoolPilliga.mxd" at pars (in full) 9-14. He concludes in par 29 that based on all the information now before him that he was first informed about vegetation change at the property for the first time on 15 March 2017. He does not have any separate memory of events. He outlines the usual practice for initial investigations undertaken, of which he is aware as supervisor for the compliance team at pars 32-33. 3. In Naven 2, Mr Naven attests to being provided with additional emails being the one sent by him to Mr Minehan dated 15 March 2017 and one dated 23 March 2017 sent from Mr Naven to Ms Samantha Wynn, copying in Mr Minehan. Mr Naven identifies the processes he undertook to prepare an email such as the 15 March 2017 email at pars 11-18. He has no separate recollection of specific events related to the project or communications about it beyond the emails he had seen. 4. Mr Minehan's first affidavit dated 29 July 2019 (Minehan 1) was read, and relevantly stated the following: Notification of clearing on the Property 17 In preparing this affidavit, I have had regard to the following documents: a. an email sent on 17 March 2017, at 11:32 am, from Mr Naven to me with two attached images (Naven Email). Annexed to this affidavit and marked as "Annexure 'B" is a copy of this email and the attached images; b. an email sent on 17 March 2017, at 4:14 pm, from me to "info@environment". Annexed to this affidavit and marked as "Annexure 'C'" is a copy of this email (Enviro Line Email); and c. a "Call Detail Report" created on 21 March 2017 by Linda Roy (Report). Annexed to this affidavit and marked as "Annexure 'D'" is a copy of this report, (collectively, Materials). 18 Apart from these Materials, I do not have any specific recollection about the Property, or about how evidence of clearing on the Property first came to my attention. 19 Based on the Materials and my usual practice (described in this affidavit at [7]-[12]), on 15 March 2017, 1 would have first become aware of a possible clearing event at a property identified as 'Clifton', comprising Lot 100 in DP 46817, Lot 15 in DP 750305, Lot 1 1 in DP 750305, Lot 28 in DP 750301, and Lot 7 in DP 750301 (Property). 20 Mr Naven would have either told me about the clearing on the Property, or he may have also shown me the clearing on the Property on his computer screen. 21 On 17 March 2017, at 1 1 :32 am, Mr Naven sent me the Naven Email. 22 The Naven Email identified two properties, "Drildool" and "Clifton", and identified a series of lots and deposited plans associated with each property. 23 To the best of my knowledge and belief, I believe that: a. I was the first authorised officer Mr Naven notified of clearing at the Property; and b. Mr Naven did not inform any other authorised officer about the alleged clearing before he told me. This is based on my usual practices, my review of the Materials, and my instructions to Mr Naven (described in this affidavit at [14]). 24 On 17 March 2017, at 4:14 pm, I forwarded the Naven Email on to the 'Enviro Line': (info@environment.nsw.gov.au). In this email, being the Enviro Line Email, I identified that evidence of clearing on the Property first came to my attention two days earlier, on 15 March 2017. Based on my usual practices, I believe that the Enviro Line Email, and the subsequent Report, are a true record of when the clearing on the Property first came to my attention. 1. Mr Naven's first affidavit dated 23 July 2019 (Naven 1) was also read and stated as follows in part: Identification of vegetation change on the Property 17. In this affidavit, where I refer to the 'Property', I am referring to the property comprising the following Lot and DPs: 100/46817, 15/750305, 11/750305, 28/750301, and 7/750301 (Property). 18. In preparing this affidavit, I have had regard to the following documents: a. an email and two attached maps sent on 17 March 2017 at 11:32 am, from myself to Mr Minehan (Naven Email). Annexed to this affidavit and marked as "Annexure 'B"' is a copy of this is a copy of this email and the attached maps; and b. the data of the two maps attached to the Naven Email. Annexed to this affidavit and marked as "Annexure 'B"' is a screenshot of the data of the two attached maps. While I did not date the two maps, the data shows that their creation date was 17 March 2017. 19. Apart from the materials identified above, I do not have any specific recollection about how I first became aware of a change in the vegetation coverage on the Property or how I would have notified Mr Minehan. 20. Mr Minehan had tasked me to review spatial imagery which was available on the OEH (Dubbo) image library server to identify any significant change in vegetation coverage in the Pilliga area. 21. On 17 March 2017, using the ESRI ArcGIS system, I mapped an area of vegetation change. I called this area "Clifton/Drildool", names which were derived from the property names as displayed by the "Properties of Western NSW" layer. Later these names were found to be out of date. 22. On 17 March 2017, I sent Mr Minehan the Naven Email: a. identifying Lot/DP numbers of the areas on which I had identified vegetation change; and b. attaching two maps I had produced of 'Clifton' and 'Drildool'. These maps showed the Cadastral layer, but not show Lot/DP numbers. 23. Based on my instructions and usual practice (set out at paragraph [9]-[16] of this Affidavit), the data of the two maps, and the Naven email, I believe that I would have informed Mr Minehan about the vegetation change on the Property on 17 March 2017. 24. Based on my instructions and usual practice (set out at paragraph [9]-[16] of this Affidavit), I believe that Mr Minehan was the first Authorised Officer who I informed about the vegetation change on the Property. 1. The Prosecutor read an affidavit of Mr Rollason solicitor dated 20 April 2022. The Exhibit AR-3 became Exhibit A. Mr Rollason responded to Mr McGirr's affidavit as to some details and provided further evidence about procedural steps in the litigation. Mr Rollason attested to a Microsoft Teams meeting of the Prosecutor's legal team and Mr Minehan on 9 March 2022, the preparation of a typed conference note recording what occurred at the meeting and the later preparation of an abridged version of the note. The latter was supplied to the Defendant in accordance with the Prosecutor's disclosure obligations. The abridged version identified communications by and with Mr Minehan about the email of 15 March 2017 from Mr Naven and other email communication between them. Mr Rollason attested that legal professional privilege was claimed over the unredacted typewritten note given the circumstances in which it was prepared. 2. Mr Rollason identified steps taken to ascertain the number of documents required to answer the call for documents sought in the Schedule to the NOM, being over 1,000. He estimated some 35 hours of solicitors' time would need to be spent reviewing the documents. 3. Mr Rollason was cross-examined about limited paragraphs in his affidavit concerning the claim for legal professional privilege made by the Prosecutor. The Defendant provided a summary of salient points as follows: 1. Mr Rollason called the meeting with Mr Minehan: T17, lines 41-43. 2. Mr Rollason himself made handwritten notes of the meeting: T18, lines 17-18. 3. Matthew Wright and Shahana [Karunakaran] made notes: T18, lines 28-30 4. The typewritten note was prepared by Shahana following the notes of Matthew Wright and Mr Rollason being provided: T18, lines 35-36. 5. Mr Rollason communicated with [Shahana] and asked her to prepare the typewritten note: T18, lines 38-40. 6. That conversation was before the meeting took place: T18, lines 48-50. 7. Mr Rollason made available to Shahana his notes after the meeting was concluded, so that she could include consideration of those notes in preparing a typewritten record of what had occurred: T19, lines 1-4. 8. Mr Rollason understood his request to Shahana before the meeting was formed into place was to compile the notes that were taken into a typewritten version of that meeting: T19, lines 8-10. 9. Mr Rollason made the arrangement with Shahana to prepare a typewritten request [sic] before the meeting occurred: T19, lines 12-15. 10. Mr Rollason cannot recall specifically whether he spoke to Shahana after the meeting about the matter of preparing a typewritten document: T19, lines 17-19. 11. Mr Rollason first saw the email of 15 March 2017 either on the evening of 9 March 2022 or on the morning of 10 March 2022: T20, lines 13-18. 1. The Prosecutor identified the following transcript references in Mr Rollason's evidence in relation to the sequence of events concerning the request to Ms Karunakaran to prepare a typewritten note of the conference with Mr Minehan on 22 March 2022: Transcript at page 18, lines 37 to 5 (emphasis added): "Q. Did you communicate with her and ask her to prepare the typewritten conference note? A. I did, yes. Q. What did you say to her? A. I asked her to prepare a sufficient record of the meeting with Mr Minahan [sic] as it was being conducted over Microsoft Teams and video. Mr Minahan [sic] having been based and was based and is to this day in Dubbo so. Q. Was that conversation before or after the meeting took place that you made that request? A. That was before." Transcript at page 19, lines 11-15 (emphasis added): Q. Sorry, I may have misunderstood you earlier. Did you make the arrangement with Shahia to prepare a typewritten request before the meeting occurred, or after it had occurred? A. Before the meeting occurred. 1. Additional correspondence between the solicitors was also tendered, Exhibit 2. This underpinned the claim for documents sought in par 3 of the NOM which are essentially of a broadly similar nature to those sought in par 2(a). Mr McGirr solicitor sent a letter dated 22 April 2022 to Mr Rollason solicitor seeking documents recording access to the project file established by Mr Naven for the period 1 March 2017 to 17 March 2017, the identity of who accessed the project file and each document stored on the project file on 15 March 2017. Defendant's submissions 1. The Defendant's NOM seeking orders for production of documents is to uphold the pre-trial obligations of the Prosecutor to disclose its case under Pt 2A of the CP Act, particularly ss 247E(i) (reference to defence case), 247I(2), 247J, 247N and 2470 (continuous disclosure obligation). Par 2(a) 1. The Defendant wishes to argue the proceedings are statute-barred as a result of Mr Minehan being aware of vegetation clearing before 14 March 2017. The Defendant's case is that Mr Minehan was well aware of investigations by Monday 13 March 2017 because of conversations and dealings with Mr Naven. The email of 15 March 2017 shows Mr Naven carried out substantial research before that date. 2. The Defendant seeks the production of documents specified in the Schedule to the NOM which identify the 'usual practice' of the Prosecutor as asserted by Mr Minehan and Mr Naven in their latest affidavits (Minehan 2 and Naven 2) being the basis on which Mr Minehan concludes when he would have been informed by Mr Naven on 15 March 2017. The Court has power to make the order for production (I note the Prosecutor does not dispute this). 3. The email dated 15 March 2017 has been produced very late. The Prosecutor does not submit that the email was not within the scope of subpoenas issued in October 2019 to Mr Naven and Mr Minehan and subsequently reissued on 24 April 2020. The Prosecutor does not provide any evidence of why the email dated 15 March 2017 was not provided earlier to the Defendant. The identification of the email resulted in further affidavits being sworn by the officers, on 1 April 2022 and 28 March 2022, where they identify that they are relying on their usual practice. 4. When the earlier and later affidavits of Mr Minehan and Mr Naven are reviewed there are inconsistencies between them. In the later affidavits their usual practice is relied on as the basis for concluding that notification occurred to Mr Minehan by Mr Naven in the email dated 15 March 2017. The possibility exists that given they share an office, work closely together and Mr Naven investigates under Mr Minehan's direction that Mr Naven told Mr Minehan relevant information earlier than that date. In Minehan 1, Mr Minehan states that he must have known from a conversation with Mr Naven. The Defendant should be able to test what is that "usual practice" given that neither deponent has any direct recollection. 5. The Defendant accepts that it has to establish that a legitimate forensic purpose is served by production of the documents, and that it is "on the cards" that they will be relevant to matter in issue. It has done so. 6. Mr Rollason's evidence shows that the documents can be produced and the order would not be oppressive. His affidavit identifies that searches have been made and relevant documents identified, and these can be promptly reviewed by the Prosecutor's solicitors. Par 2(b)(i) 1. The Prosecutor cannot claim legal professional privilege in relation to the documents sought in par 2(b)(i) of the NOM. The purpose of creating the un-redacted document based on handwritten notes of three attendees at the meeting on 9 March 2022 (as identified by Mr Rollason's oral evidence) was to provide text which would be provided to the Defendant in a redacted form. That was the primary purpose for its production. 2. The Prosecutor bears the onus of establishing that the dominant purpose for which the typewritten conference note was prepared was for the purpose of litigation and has not done so. 3. Alternatively, the Prosecutor has waived legal professional privilege over the unredacted typewritten conference note not already provided to the Defendant by its actions in disclosing the redacted portion. Support for this argument is found in Northern Territory v Maurice (1986) 161 CLR 475; [1986] HCA 80 (Maurice) per Gibbs CJ at 481, Dean J at 492-493, Dawson J at 497. Par 3 1. The correspondence between the solicitors in Exhibit 2 in April 2022 identifies the nature of the documents sought. These are required for the same reasons as those documents in par 2(a). 2. The parties agreed that given the nature of the orders sought in paragraph 2(a) the applicable principles are those relating to the issuing of a subpoena. Prosecutor's submissions Par 2(a) Principles for orders in the nature of subpoenas 1. It is not sufficient for a party seeking production to merely establish that such documents may be relevant. The party must be able to establish two things: first, that it has a legitimate forensic purpose for the documents sought, and second, that it is "on the cards" that the documents sought will materially assist its case and the party is not fishing for documents that may be relevant and that may be of assistance to the party concerned: Attorney-general (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 (Chidgey) per Beazley JA at [59]-[60] (James and Kirby JJ agreeing); Lipton v R [2010] NSWCCA 175 (Lipton) per McClellan CJ at CL at [14], [19] (Hislop and Barr AJ agreeing). 2. A subpoena for production is bad if there is no legitimate forensic purpose for the documents sought (R v Saleam (1989) 16 NSWLR 14 (Saleam) at 17A-D (Hunt J, Carruthers and Grove JJ agreeing), Chidgey at [64]) or if it is a fishing expedition – that is the Defendant, having no evidence that fish of a particular kind are in the pool but wanting to drag the pool in order to find out whether there were any such fish there or not: Saleam at 17D-F. 3. The concept of demonstrating a legitimate forensic purpose has been expressed in contradistinction to seeking documents merely "to discover whether he has a case at all": Perish v R [2015] NSWCCA 237 (Perish) at [57] (Hoeben CJ at CL, Price and Fagan JJ agreeing). In Carroll v Attorney General for NSW (1993) 70 A Crim R 162 (Carroll), Mahoney P said at 181-182: It is not open to a party, as on a fishing expedition, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding…In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something might be relevant or help his case….He must be able to indicate that the document is relevant in the sense that it many assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case'. That in my opinion is not sufficient. 1. In a criminal case, some relaxation of the rules as to legitimate forensic purpose is permitted provided the Court can conclude that "it is on the cards" that the subpoenas party possesses documents that would materially assist the defendant: at Saleam at 17E-18C. This requires the party seeking production to demonstrate, beyond mere suspicion or speculation, that it is "on the cards" that the documents sought will materially assist its case: Lipton at [19]-[20]. Attempting to obtain material "in the hope that something will emerge from the material" which will support an attack is a "fishing expedition" and an impermissible use of a subpoena: R v Baladjam (No 28) [2008] NSWSC 1449 (Whealy J); Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd et al (No 6) [2021] NSWLEC 28 (Robson J) at [50]-[51]. Applying the principles to proposed order 2(a) 1. The Defendant's case that Mr Naven must have told Mr Minehan something relevant before 15 March 2017 is speculative. No evidence is identified to suggest that Mr Minehan had any knowledge or any reason to have knowledge of clearing being carried out on the land before 15 March 2017. The Defendant asserts its case theory that he must have known earlier but that is an assertion only. Consequently the documents sought are a fishing expedition and serve no legitimate forensic exercise and should not be required to be disclosed. 2. There is nothing about the reliance of Messrs Naven and Minehan upon their recollections of their usual practices and the systems of work in their office in 2017 which can gainsay the force and effect of the evidence comprising Mr Naven's email to Mr Minehan on 15 March 2017. 3. The fresh evidence in their second affidavits reinforces the veracity of Mr Minehan's evidence in his first affidavit as to when he was first notified of the clearing. And, as noted above, the fresh evidence is also consistent with the contemporaneous record: the date of 15 March 2017 being the date that, on 17 March 2017, Mr Minehan reported to Enviro Line that he had been informed. 4. Thirdly, there is nothing in the evidence referred to above which suggests that there was any occasion earlier than 15 March 2017 that "evidence of the offence first came to the attention of an authorised officer". 5. The Defendant has not identified a legitimate forensic purpose for any of the items the subject of the order sought in par 2(a). The fact that, on 14 March 2022, the Prosecutor produced an email from Mr Naven to Mr Minehan dated 15 March 2017 which tends to support the particulars given in par (d) of the original summons and the amended summons is no ground to authorise a fishing expedition for other emails. There is no evidence indicating that any earlier advice as to the appearance of vegetation change on the subject property came to the attention of Mr Minehan or any other authorised officer. 6. The production of documents is unreasonable and is oppressive. Item one of the Schedule requires production of all emails in which Mr Naven was informed of possible vegetation change over a seven-month period, which is oppressively long and irrelevant. 7. Items one to seven in the Schedule to the NOM calls for production of categories of documents not confined to emails relating not just to the property the subject of these proceedings but any property at all. 8. Item 8 requires the production of all emails from Mr Minehan to the Enviro Line in the same seven-month period "in relation to the property identified at the time as 'Clifton'. 9. Item 9 requires the production of all emails from Mr Naven to Mr Minehan sent in response to the email from Mr Minehan to Mr Naven on 17 March 2017 with the subject "Favour". In this regard, note that the email sought, in response to the nominated email with the subject "Favour" is in evidence. 10. Item 10 requires the production of all emails between Naven and Minehan in relation to the projects identified in the email from Minehan to Naven on 17 March 2017 at 10:38AM. Par 2(b) 1. An order for the production of the records of the communications sought in par 2(b)(i) would result in disclosure of the contents of privileged communications and the Court should therefore reject this claim. The document sought under par 2(b)(i) is subject to legal professional privilege. The evidence of Mr Rollason makes clear that the purpose for its preparation was to record privileged advice for the dominant purpose of providing legal professional services relating to an Australian proceeding in which the client is a party under s 119 of the Evidence Act. That Mr Minehan will only be called as a witness if the issue of the statutory limitation period arises, which it does not presently, does not prevent privilege being claimed in these circumstances. 2. In any case, no waiver occurred as a result of a redacted version of the typewritten conference note being supplied to the Defendant. The Prosecutor identified to the Defendant that at all times legal privilege was claimed over the conference note in both the common law sense and statutory sense as client legal privilege under the Evidence Act. 3. The Prosecutor has ongoing duties of disclosure during criminal proceedings under s 247E(1)(i) of the CP Act and ethical duties of disclosure under the common law. Section 131A of the Evidence Act dealing with pre-trial disclosure applies Div 1, which includes ss 119 and 122, to court orders to be made requiring disclosure (as it sought in the NOM), also as found in Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159 (Queanbeyan City Council No 2) at [25]-[58] particularly as summarised in [26]. 4. A procedural direction is an order of the court which involves a legal duty, see Akins v Abigroup Ltd (1998) 43 NSWLR 539; [1998] NSWCA 8 per Mason P at 551-552; Dubbo City Council v Barrett [2003] NSWCA 267 at [17]; Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 86 FCR 215; [1998] FCA 849 (Foster, Lee and Nicholson JJ). The common law duty of disclosure involves a legal duty to which the Prosecutor is subject. Both sources of that duty compelled disclosure within the meaning of s 122(5)(a)(iii) of the Evidence Act, so that the Prosecutor was is not taken to have acted in a manner inconsistent with objecting to the adducing of evidence. 5. Mr Rollason's evidence confirms that the topics disclosed to the Defendant were discrete from other topics in the typed conference note. There has otherwise been no disclosure or waiver by the Prosecutor in relation to the document sought by the Defendant. Par 3 1. No legitimate forensic purpose has been identified by the Defendant for the production of the matters referred in par 3(a) as identified in relation to par 2(a). 2. Further, the form is uncertain because it is not clear what is meant by "records". Consideration 1. The NOM seeks access to three different categories of documents, identified in pars 2(a) and the Schedule, 2(b)(i) and 3 of the NOM. Paragraphs 2(a) and 3 raise generally similar issues. Paragraph 2(b) raises discrete issues. An order for production is sought on the basis according to the Defendant that it is enforcing the disclosure requirements placed on the Prosecutor under Pt 2A of the CP Act as set out above in the legislation section at [7]. The Court has power to make the order sought but in doing so the principles applicable to the consideration of the production of documents pursuant to a subpoena are helpful, as reflected in the Prosecutor's submissions. The Defendant accepted it had to show a legitimate forensic purpose existed for production and that what it sought was "on the cards" likely to materially assist its case. 2. It is agreed that the email from Mr Naven to Mr Minehan of 15 March 2017 fell within the scope of earlier subpoenas issued by the Defendant to the Prosecutor. The Prosecutor submits that this was disclosed to the Defendant as soon as it became known that it existed, which was shortly after the meeting of the Prosecutor's legal representatives and Mr Minehan on 9 March 2017. While unfortunate timing and certainly unsatisfactory from the Defendant's point of view the delay in the provision of a document which should have been produced much earlier by the Prosecutor alone does not carry any weight in my consideration of whether these orders ought to be made. Par 2(a) 1. The Defendant bears the onus of proof of establishing that this prosecution was commenced outside the timeframe in s 42(4) given the provisions of s 42(5) of the NV Act. 2. Minehan 2 and Naven 2 are summarised above in [10]–[11]. Relevant parts of Minehan 1 and Naven 1 are extracted above in [12]-[13]. Read collectively and in context Minehan 2 does not alter any evidence in Minehan 1, rather it clarifies what Mr Minehan's position is in light of new emails received, most relevantly the email from Mr Naven dated 15 March 2017. All the affidavits are based on knowledge and belief, and with awareness of usual work practice, as neither deponent has any direct recollection of these events. The additional emails caused Mr Minehan to confirm in Minehan 2 that he became aware on 15 March 2017, as he advised in his report to Enviro Line attached to his first affidavit. 3. Similar observations apply to Mr Naven's evidence across the two affidavits he has sworn. 4. The Defendant asserts a case that is speculative in that no evidence supports its claim that Mr Minehan must have known something relevant earlier than 15 March 2017 and that Mr Naven had clearly done a lot of work before the email dated 15 March 2017 and must have told Mr Minehan something about that work earlier because they work closely together in the same office. That documents may assist the Defendant in making out its speculative case is not a basis to require their production. I agree with the Prosecutor's submissions that no legitimate forensic purpose is identified by the Defendant, relying on authorities such as Saleam, Chidgey, Lipton, and Perish as summarised above in [31]-[34]. Nor is it 'on the cards' that these documents will assist the Defendant. 5. Seeking to identify the nature of the usual practice of Mr Naven and Mr Minehan by having the Prosecutor produce the documents sought in the Schedule to the NOM is fishing. The categories, for a seven-month period, are wide and include any documents on any matter which may be the subject of investigation by Mr Naven or Mr Minehan. That the list is based on specified paragraphs in Minehan 2 does not render it relevant. The relevance of finding out what is happening in relation to other investigations which may be occurring is not apparent regardless of the assertion by the Defendant that it is. 6. My finding above means that I do not need to determine if making the order in relation to par 2(a) is oppressive on the Prosecutor. I observe that, in light of Mr Rollason's evidence and given the quantity of documents identified and the need to inspect them before their release, it is oppressive. 7. That the Defendant bears the onus of proof concerning matters that are largely known only to the Prosecutor does not on its own support the Defendant's approach in the absence of any evidence. 8. The documents sought in par 2(a) need not be produced by the Prosecutor. Par 2(b)(i) 1. Under par 2(b)(i) of the NOM the Defendant seeks the unredacted typewritten note prepared following the 9 March 2022 meeting. 2. Section 131A of the Evidence Act applies Div 1 of Pt 3.10 (which includes ss 119 and 122) in certain preliminary proceedings including criminal proceedings where disclosure is sought and objected to. That s 131A applies in the circumstances before me was confirmed in Queanbeyan City Council No 2 at [56]-[58] where Pepper J agreed with the council's submissions in that case summarised at [26]. Section 131A applies to the circumstances of the Prosecutor I am considering. 3. A document produced for the dominant purpose of the provision of legal professional services relating to an Australian proceeding in which the client is a party is subject to legal professional privilege: s 119 of the Evidence Act. 4. I do not agree with the characterisation of the purpose of the typewritten conference note submitted by the Defendant, namely that it was prepared predominantly to enable the preparation of the redacted note sent to the Defendant. Based on the evidence of Mr Rollason, including his oral evidence summarised above in [16] and [17], the employee Ms Karunakaran who prepared the typed document was asked to do so before the meeting. Knowledge of the possibility of the existence of the email dated 15 March 2017 was only identified in the course of the meeting. It is not at all surprising that a typewritten record of such a meeting would be prepared rather than relying on three different handwritten versions of notes. Mr Rollason did not state in cross-examination that the unredacted typewritten note was prepared after the email of 15 March 2017 came to light, a submission the Defendant did not ultimately press once the transcript was reviewed. Nothing about the process for the document's preparation suggests other than that it was prepared with the dominant purpose of providing legal services in connection with litigation. Consequently it is privileged. 5. Whether Mr Minehan is called as a witness is immaterial. The relevant provisions of the Evidence Act refer to a person claiming privilege not a witness. 6. In relation to whether there was a waiver of privilege due to the limited disclosure to the Defendant of part of the note, I essentially agree with the Prosecutor's extensive submissions set out above that there was not. The disclosure was made in order to comply with the Prosecutor's duty to disclose as identified in the CP Act and at common law. 7. The circumstances addressed in Maurice of whether following partial disclosure it was fair to allow privilege to be claimed over the remainder of material do not reflect the very different circumstances here, namely the important duty of disclosure imposed on the Prosecutor which resulted in the partial disclosure of the typed conference note. 8. The document sought in par 2(b)(i) need not be disclosed. Par 3 1. For the reasons outlined above in relation to par 2(a) no legitimate forensic purpose has been identified by the Defendant in relation to what it sought in par 3. The form of the order sought is also unclear 2. No documents need be produced in relation to par 3. Order 1. The order of the Court is that the Defendant's NOM dated 8 April 2022 is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2022