Industrial Court of New South Wales CITATION: Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243 PROSECUTOR Rodney Dale Morrison PARTIES: FIRST DEFENDANT Bulga Coal Management Pty Ltd SECOND DEFENDANT P&H Minepro Australasia Pty Ltd FILE NUMBER(S): IRC 364, 365 and 366 of 2008 CORAM: Staff J CATCHWORDS: Occupational Health & Safety - Practice and procedure - Notice to produce - Pre-trial claim of legal privilege - Whether common law principles or statutory provisions apply to privilege claim - Relevance to fact in issue - Prosecution duty of disclosure - Documents privileged - Evidence Act 1995 (NSW), Pt 3.10 - Industrial Relations Commission Rules, Pt 13, Pt 14, Pt 22, Pt 27A - Rule 160 Coal Mine Health and Safety Act 2002 (NSW) Coal Mines Regulation Act 1982 (NSW) Criminal Procedure Act 1986 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW) Industrial Relations Act 1996 (NSW) Mine Health and Safety Act 2004 (NSW) Mines Inspection Act 1901 (NSW) Occupational Health & Safety Act 2000 (NSW) Attorney-General for the Northern Territory v Maurice and others (1986) 161 CLR 475 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Commissioner of Taxation of the Commonwealth of Australia v Spotless Services Limited (1996) 186 CLR 404 Filipowski v Island Maritime Limited & Anor [2002] NSWLEC 177 CASES CITED: Filipowski v Nikolaos (2004) 136 LGERA 157 Cahill v State of New South Wales (Department of Community Services) (2007) 161 IR 124 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4VR 332 R v Bunting and others (2002) 84 SASR 378 R v Ronen [2004] NSWSC 1305 R v Petroulias (No 22) (2007) 213 FLR 293 Waugh v British Railways Board [1980] AC 521 24 September 2008 HEARING DATES: 13 October 2008 Written Submissions: 27 October 2008, 17 November 2008 and 20 November 2008. DATE OF JUDGMENT: 19 December 2008 PROSECUTOR Mr PM Skinner of counsel Solicitor: Ms J Edwards Crown Solicitor's Office FIRST DEFENDANT LEGAL REPRESENTATIVES: Mr D Jordan of counsel Solicitor: Ms J Filtcroft Sparke Helmore SECOND DEFENDANT Mrs WG Thompson of counsel Solicitor: Mr M Tooma Deacons JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Friday, 19 December 2008 Matter No IRC 364 of 2008 RODNEY DALE MORRISON V BULGA COAL MANAGEMENT PTY LIMITED Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 365 of 2008 RODNEY DALE MORRISON V P&H MINEPRO AUSTRALASIA PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 366 of 2008 RODNEY DALE MORRISON V P&H MINEPRO AUSTRALASIA PTY LTD Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 243 1 On 19 March 2008, the Court ordered, on the application of the prosecutor, pursuant to s 246(1) of the Criminal Procedure Act 1986 (NSW) ("the CP Act"), as applied by s 168 of the Industrial Relations Act 1996 (NSW) ("the Act"), Bulga Coal Management Pty Ltd ("Bulga") and P&H Minepro Australasia Pty Ltd ("Minepro") answer charges that in the case of Bulga, it committed an offence pursuant to s 8(2) of the Occupational Health & Safety Act 2000 and in the case of Minepro, it committed offences pursuant to s 8(1) and s 8(2) of that Act. 2 On 23 September 2008, Bulga served a notice to produce on the prosecutor. Objection was taken by the prosecutor to producing certain documents on the grounds of legal privilege. The Notice to Produce 3 The notice to produce directed to the prosecutor sought production of the following documents: 1. Investigation report dated 2006 titled, words to the effect of, 'Memorandum for Prosecutor, Litigation Advisory Unit'. 2. Draft investigation report prepared by Inspector Freeman. 3. Any other investigation reports prepared by the Department of Primary Industries, or any of the Department of Primary Industries' Inspectors, in relation to the incident on 21 March 2006 at the Bulga Open Cut Mine, near Singleton in the state of New South Wales. 4. All factuation investigation reports or findings, and related documentation, in relation to the incident on 21 March 2006 at Bulga Open Cut Mine. 4 At the directions hearing on 24 September 2008, counsel requested that I hear argument regarding the production of documents 1 and 2 in the notice to produce. Documents 3 and 4 were not pressed at this time with the parties agreeing to further discussions. Statutory Provisions 5 The statutory provisions relevant to the present proceedings are s 123 of the Evidence Act 1995 ("the Evidence Act") and s 47 I of the Mines Inspection Act 1901 (now repealed) which provide: 123 Loss of client legal privilege: defendants In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of: (a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person, or (b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person. ... 47 I Reports by investigators (1) An investigator must, after completing an investigation under this Act, report to the Director-General in relation to the subject-matter of the investigation. (2) Without limiting subsection (1), a report concerning a serious accident or dangerous incident is to contain information as to the causes of the accident or incident and its circumstances. (3) An investigator may, at any time before the completion of an investigation, make an interim report to the Director-General. (4) The Director-General may, if the Director-General thinks fit, publish the report at the time and in the manner determined by the Director-General. Evidence on the Application 6 In support of the claim of legal privilege, the prosecutor read the affidavit of Tim Hammond, solicitor with the carriage of this matter, sworn 19 September 2008. Mr Hammond was not required for cross-examination. Exhibited to Mr Hammond's affidavit, but only produced to the Court, were two documents. The first was entitled "Memorandum for Prosecutions Litigations & Advisings Unit - Confidential and Privileged - Investigation into the Unplanned Movement of an Aerial Lift Resulting in Serious Injury to Andrew Baxter, Bulga Open Cut Mine near Singleton - 21 March 2006" (Exhibit A); the second document was entitled "Investigation Report for Director General - Into the Cause and Circumstances of the Unplanned Movement of an Aerial Life Resulting in the Notifiable Incident and Injury to Andrew William Baxter which occurred at the Bulga Open Cut Mine on 21 March 2006." (Exhibit B). 7 Mr Hammond stated that on 28 August 2008, the prosecutor wrote to the defendant, via their lawyers, advising that Exhibits A and B would not be produced as they are subject to legal professional privilege. Mr Hammond said that both of the disputed documents were prepared by the principal investigator in the matter, Mr Mark Freeman, who was employed as an investigator by the New South Wales Department of Primary Industries ("the Department"). In respect of the disputed document, Exhibit A, Mr Hammond stated that he had been instructed by Mr Freeman that the document was prepared for the purpose of sending it to the Prosecution Litigation and Advisings Unit of the Department for the dominant purpose of seeking advice to: confirm potential defendants and relevant breaches; identify potential defences for all potential defendants; advise whether a prima facie (sic) exists for the identified breaches and advise on the prospects of success in each case. This document has since been further to the Crown Solicitor's Office and counsel briefed on behalf of the prosecution for the purposes of legal advice. 8 In relation to the disputed document, Exhibit B, Mr Hammond stated that this document was prepared by Mr Freeman for the purpose of advising the Director-General of the Department as to the progress of his investigation of this matter. Exhibit B is based upon and drafted as an edited version of Exhibit A. Mr Hammond said that according to Mr Freeman the document is in draft form because it is still an internal document and has not been cleared for publication and that until it is cleared for publication by the Director General, he considers the document to be confidential. The purpose of the document was said to make a confidential recommendation to the Director General. 9 Client legal privilege is claimed by the prosecutor under s 118 of the Evidence Act and any loss of such privilege is resisted under s 122(2)(a), s 122(2)(d), s 122(4)(b) and s 122(5)(b) of the Evidence Act. Submissions of the Parties 10 Mr D Jordan of counsel, who appeared for Bulga, in summary, made the following submissions: (i) the prosecutor's duty of disclosure overrides any claim of legal privilege in circumstances where the prosecutor is seeking to resist production of relevant material to a defendant in criminal proceedings. Reliance was based on R v Petroulias (No 22) (2007) 213 FLR 293; (ii) addressed to issue of the relevance of the documents by focusing on the prosecutor's duty of disclosures submitting that the test is not whether the material is in admissible form, but rather, is it relevant and holds out a real prospect of providing a lead (sic) on evidence; (iii) that material prepared by an investigator on the causes of the incident would at least provide real prospects of a lead on the evidence; (iv) the Evidence Act only applies to the adducing of evidence at trial. (v) the common law principles apply to a notice to produce unless the Rules of the Commission expressly apply the Evidence Act to pre-trial procedures: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 2001 CLR 49 at 59 - 64; (vi) the Act and the Industrial Relations Commission Rules ("the Rules") do not provide for the Evidence Act to apply to pre-trial procedures. See r 186 of the Rules. 11 In subsequent written submissions, Mr Jordan addressed the following: (i) the Evidence Act has no application to the notice to produce unless the provisions of the Evidence Act concerning client legal privilege are applicable by operation of other statutory provisions; (i) Part 13 - General Procedure, r 86 of the Rules provides generally for the production of a document on notice without any reference to the Evidence Act. Similarly, the Evidence Act is not referred to under Pt 14 - Summonses, nor in Pt 27A - Proceedings for Offences of the Rules; (ii) the Evidence Act is referred to under Pt 22 - Discovery and Inspection of Documents of the Rules. Rule 160 includes a definition of "privileged document" which is applied in relation to a notice to produce for inspection pursuant to r 161. It appears that this has the effect of adopting the provisions of Pt 3.10 of the Evidence Act to a notice to produce served pursuant to r 161; (iii) read in the context of the Rules as a whole, it appears that Pt 22 - Discovery and Inspection of Documents was not intended to apply to criminal proceedings. This is further supported by the absence of any reference to the Evidence Act in Pt 13 which deals with procedure generally and the absence to any reference to the Evidence Act in Pt 27A which deals with specifically with proceedings for offences; (iv) the combined effect of s 168 and s 257 of the Criminal Procedures Act (which provides for summary criminal procedures) is that, in criminal proceedings before this Court, the procedure for a notice to produce is governed by the Rules by operation of s 168(4) of the Act. Those procedures prevail over s 164 (Powers of Commission as to the Production of Evidence, Perjury and Contempt); (v) in the absence of any adoption of the Evidence Act in relation to a notice to produce under r 86 of the Rules and given that there is no reference to the Evidence Act in relation to criminal proceedings under Pt 27A of the Rules in accordance with the decision of the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 13 - 34, the Common Law principles in relation to the prosecutor's claim of legal professional privilege apply; (vi) if the Evidence Act applies, any claim by the prosecutor of client legal privilege is abrogated by s 123 of the Evidence Act; (vii) the prosecutor has not established a claim of legal professional privilege in relation to Exhibit B which was prepared by Investigator Freeman for the purpose of advising the Director-General of the Department as to the progress of his investigation of this matter. On the evidence, the prosecutor cannot discharge the onus of establishing that Exhibit B was prepared for the dominant purpose of a lawyer providing legal advice or legal services; (viii) the Court should determine whether the duty of disclosure applies. 12 Mrs WG Thompson of counsel, who appeared for Minepro, made the following submissions: (i) it had not been established on the evidence that the dominant purpose for the preparation of the reports was the obtaining of legal advice; (ii) the Department is the Administrator of the Occupational Health and Safety Act in New South Wales in relation to mining and colliery activities under the various statutes; (iii) Mr M Freeman was appointed as an Investigator by the Minister or his delegate and has the powers associated with that appointment to investigate incidents, particularly in relation to coal mines; (iv) Section 153 of the Coal Mine Health and Safety Act 2002 refers to a requirement of a Government official, who is defined in s 145D as an investigator to make reports on incidents or other matters at coal operations and make recommendations for further action based on the report; (v) the Department's Investigation Unit investigates major accidents, deaths, serious incidents and certain "prescribed matters" which include gas and dust explosions and inrushes of water in mines; (vi) every investigation report prepared by the Unit is submitted to the Department's "Assessment Review Committee". The Committee makes recommendations based on the enforcement policy and advises the Director General on legal proceedings and further action; (vii) the affidavit of Mr Hammond indicates this process is being followed here; (viii) prosecutions have been commenced and there is no overriding need that has been identified that would prevent production of the reports. 13 In written submissions, Mrs Thompson addressed the following: (i) the submissions and conclusions of the second defendant that the Common Law applies as the relevant test as to whether legal privilege is attached to Exhibits A and B are adopted. Rule 161(1)(b) of the Rules provides for the issue of a notice to produce. Rule 160(c)(i) defines a "privileged document" including documents produced under a notice to produce, to include a document of which evidence could not be adduced over objection by virtue of the operation of Pt 3.10 of the Evidence Act. It is the accepted practice and usage in the conduct of Occupation Health & Safety prosecutions for the parties to issue notices to produce for the discovery of documents; it is arguable that the wording of r 160(c)(i) is sufficient to have the effect of adopting Pt 3.10 of the Evidence Act; (ii) a statutory indication that the Evidence Act is to apply may be found in the interaction between the Rules and the Supreme Court Rules. Rule 89(5) of the Rules provides for the Supreme Court Practice, Procedure and Usage where there is no relevant provision, or established practice, procedure and usage applicable under its Rules. (iii) Part 75 Div 1 r 3 and Div 2 r 4, Div 2 r 5 and Div 2 r 6 of the Supreme Court Rules apply to summary criminal proceedings. Part 75 of the Supreme Court Rules applies nominated provisions of the Uniform Civil Procedure Rules 2005 ("the UCPR"). In R v Petroulias, it was held that Pt 75 of the Supreme Court Rules has the effect of applying the legal professional privilege provisions of the Evidence Act at [46] - [47]; (iv) in the event that the Evidence Act applies, s 118 of that Act provides that in general confidential communications made and documents prepared for the dominant purpose of a lawyer providing legal advice will attract client legal privilege. (v) Mrs Thompson then discussed the relevant principles to be applied in determining whether a document in whole or in part may attract client legal privilege; (vi) Counsel submitted the primary purpose for the creation of Exhibit A was to satisfy the statutory requirements found in s 47 I of the Mines Inspection Act 1901. This section requires an investigator to prepare a report of an investigation for the Director-General of the Department. The primary purpose of creating Exhibit B was to advise the Director-General of the progress of the investigation. That purpose of itself cannot be said to attract legal privilege; (vii) the provisions of s 122(2)(a) and s 122(2)(d); s 122(4); and s 122(5)(b) of the Evidence Act do not prevail over the provisions of s 123 of the Evidence Act. 14 Mr P M Skinner of counsel, who appeared for the prosecutor, in summary, made the following submissions: (i) the Department is the client of the Office of the Crown Solicitor of New South Wales and is well aware of its obligations of prosecutorial disclosure in criminal matters; (ii) relevance is determined by reference to a fact in issue in the case. Neither of the documents could be tendered at the trial and neither of them are relevant to an issue in the case. All relevant evidence has been served; (iii) Exhibit A under the heading "Purpose of Memorandum" states that "the purpose of the memorandum is to seek legal advice through the Prosecutions Litigation and Advisings Unit of the Department of Primary Industry". At the bottom of each page appear the words "Confidential and Privileged - Prepared for the purpose of obtaining legal advice"; (iv) Exhibit A was prepared for the dominant purpose of obtaining legal advice; (v) Exhibit B was prepared by Mr Freeman from Exhibit A for the purposes of advising the Director General as to the progress of his investigations and until it is cleared for publication, it remains confidential. The Department's guideline in respect of the Enforcement of Health and Safety Standard in Mines which the Department has complied with provided under the heading "Investigation Policy": Make available relevant information from investigations to industry, unions and the public in the interests of future prevention, unless there is some overriding requirement for confidentiality (for example a pending prosecution which would justify deferring public dissemination of information) in which case reasons for non disclosure will be made available to relevant parties. The Evidence Act applies by r 89 of the Industrial Relations Commission Rules. 15 In written submissions, Mr Skinner addressed the following: (i) whether the documents are legally privileged, under the appropriate definition, and whether or not the defendants have a legitimate forensic purpose in obtaining these documents are entirely different from the issue of prosecutorial disclosure; (ii) that issue, particularly at this stage of the proceedings where neither defendant has entered a plea, is in law, clearly one for the prosecution alone; (iii) the foundational judgment for Mr Jordan's submissions, Petroulias (No 22) goes further and as well confirms this legal proposition at [64]; (iv) R v Spiteri (2004) 61 NSWLR 369 and the discussion of the relevant principles in that judgment make it quite clear that the prosecution's duty of disclosure cannot be tested in advance against hypothetical defences which it cannot foresee: see Simpson J at [25] and [28]; (v) the defendants cannot possibly say that they are not aware of the course of the investigation, or by what witnesses and by what documentation the prosecution proposes to prove its case. To hold that s 123 of the Evidence Act is applicable to the instant ancillary court process and pre-trial proceeding, whether or not it is applicable in a trial, by an oblique process of a thicket of references in subsidiary legislation would be a fundamental change to accepted prosecutorial practice. S 123 of the Evidence Act does not apply to the instant application to abrogate the prosecutor's claim for legal professional privilege over the two reports: see Director of Public Prosecutions (Cth) v Cain and ors (1997) 140 FLR 468; (vi) imputed waiver of the prosecutor's legal professional privilege does not apply: see Filipowski v Nikolaos (2002) 84 SASR 378. Consideration 16 A critical question, it seems to me, which was raised by Mr Skinner is how are the draft documents regarding an advice about a possible prosecution relevant or potentially relevant to a fact in issue in these proceedings, particularly at the pre-trial stage of a criminal prosecution. The evidence makes it clear that the exhibits are clearly not an inspector's report. See s 47 I of the Mines Inspection Act 1901 (NSW) (now repealed). Exhibit A is a memorandum for the Prosecutions Litigations and Advisings Unit of the department and Exhibit B is a draft Investigation Report for the Director-General. As such, the exhibits cannot be relevant to a criminal prosecution and could not therefore form part of the prosecutor's duty to disclose. 17 I do not accept Mr Jordan's contentions that the documents should be produced because they hold out a real prospect of providing, what he described as, "a lead" on the evidence. This does not establish a legitimate forensic purpose which would require production of the documents. The prosecutor is therefore, on this basis alone, entitled not to produce these documents. 18 In light of that conclusion, it may not be strictly necessary to deal with the other submissions of the parties. Nevertheless, on balance, I consider it appropriate I do so. 19 Mr Skinner acknowledged that his client was well aware of its obligations of prosecutorial disclosure in criminal matters. Recently, Johnson J in R v Petroulias (No 22) (2007) 213 FLR 293 ("Petroulias (No 22)") in considering this issue, observed at [29]: The prosecutor's duty of disclosure has been recognised at common law; R v Reardon (No 2) 2004) 60 NSWLR 454 at 468-469; R v Spiteri (2004) 61 NSWLR 369 at 373-374; Maitland v The Queen (2005) 224 CLR 125 at 133, 149-156. In R v Spiteri, Simpson J ( Grove and Shaw JJ agreeing) stated at [17] - [21] that, for New South Wales, the prosecution's duty of disclosure of material which can be seen on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (a) or (b) above. 20 Later at [64] his Honour observed: The duty of disclosure operates so that the CDPP ought disclose to the defence all documents to which the duty attaches, irrespective of whether client legal privilege applies to the relevant documents. However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial: Mallard v The Queen (2005) 224 CLR 125 at 155-157 [81] - [84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. Apart from this question of principle, at a practical level, the CDPP and his officers, no doubt advised by prosecuting counsel, will be in a far better position than a trial judge to form a view as to whether documents ought to be disclosed in the discharge of this duty. The trial judge will not usually be aware of the course of prior disclosure, the range of statements taken from Crown witnesses, especially in the context of a complex fraud case with a long litigious history, such as the present case. Even given the advantages which I have as the trial judge engaged in a range of interlocutory applications and trials since July 2006, I am not in a position to review, in some way, the Crown's discharge of its duty of disclosure. 21 The two High Court citations in this passage are to judgments of Kirby J. Mallard was a judgment of the High Court which considered extreme prosecutorial misbehaviour. Kirby J stated in the passage cited by Johnson J as follows: [82] According to the principles expressed (as in Apostilides), this court will not second guess the prosecutor in the decisions that have to be made in presenting the prosecution case. Still less is the prosecutor burdened with an obligation to present the defence case (which, in any event, may not always be known in advance of the trial). 22 In Filipowski, Kirby J stated in the passage cited: [81] Generally speaking, courts exist to quell the controversies brought by them by the parties. Their powers, of their own initiative, to institute or terminate proceedings are exceptional. Such powers are kept in firm check. Courts in this country are not, generally speaking, inquisitors. This is true of civil process. With even greater emphasis, it is true of criminal process. There, judges are repeatedly enjoined to respect the prosecutor's independent discretions. Ordinarily, those discretions, if made within power, are exempt from judicial superintendence or inference. They generally belong, in our system of government, to the executive, its agencies and officials, not to the judiciary which ordinarily keeps its distance from such decisions, just as it demands independence in the discharge of its own functions. These are not absolute rules. But in Australia these cases (both in criminal and civil proceedings) are acknowledged as exceptional. 23 Johnson J went on to observe that in recent years, it has been the common practice of Directors of Public Prosecutions throughout Australia to publish a policy or guidelines concerning the prosecution's duty of disclosure. The Department, in January 1999, published policy statements and an organisational approach to enforcement, assessment of mining operations and investigation of accidents for incidents and prosecution. 24 Paragraph E deals with prosecutions and provides: E.1 Outcome Sought The Principal outcome sought is the effective use of prosecution as an integral part of the Department's Enforcement Strategy. 3.2 Principles The Department of Mineral Resources accepts the following principles in relation to prosecution: (a) Prosecution is an important part of the overall Enforcement Strategy both as an actual response in some cases and in order that industry may have a perception of the possibility of prosecution sufficient to act as a deterrent to bolster the efficacy of other responses and sanctions. (b) The Department will use the most effective means of promoting compliance with acceptance standards - which will not be prosecution in all cases. (c) Prosecution is only one of a wide range of responses available to the Department and that full range of responses should be used to best effect in the Department's overall enforcement strategy. (d) Prosecution should be considered in all instances where a significant breach of legislation is discovered by the Department. Significant breaches of legislation will include, but may not be limited to: - breaches causing, or likely to cause, death, or serious injury or ill health; or - breaches continuing to occur after other representations or interventions by the Department; or - breaches which impede or interfere with the proper investigation of causes and circumstances surrounding an event. (e) The Department should maintain arrangements and procedures to enable possible prosecutions to be considered in a fair, consistent and timely fashion, including the formalising of processes of considering recommendations for prosecution. 25 Relevantly, under Investigation Policy, it provides the Department will: (g) make available relevant information from investigations to industry, unions and the public in the interests of future prevention, unless there is some overriding requirement for confidentiality (for example a pending prosecution which would justify deferring public dissemination of information) in which case reasons for non-disclosure will be made available to the relevant parties. 26 Mr Skinner submitted that the reasoning of Johnson J in the above quoted passages from Petroulias (No 22) were expressly adopted on behalf of the prosecution. Counsel submitted that its logic is even more compelling in the instant situation because, as the above passage makes clear, Johnson J was in the course of a trial that had been proceeding on and off for over a year at the time of the application upon which he was ruling, and yet his Honour noted that even if he were legally able to review the Crown's discharge of its duty of disclosure, he was not in a position to do so. To my mind, the prosecutor's argument is compelling and I respectfully propose to adopt the reasoning of Johnson J, which seems to be particularly persuasive at this stage of the proceedings where the defendants are yet to enter a plea. 27 In these matters, the prosecutor declines to produce two documents (earlier referred to as Exhibits A and B to Mr Hammond's affidavit) because it claims legal privilege applies to the documents. 28 Both Mr Jordan and Mrs Thompson challenged the evidence of Mr Hammond, submitting that it did not demonstrate that the dominant purpose of the reports was to obtain legal advice. 29 The test of what is "a dominant purpose" is an objective test, but the subjective intention of the person responsible for the document coming into existence is entitled to weight. In Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 ("Esso Australia Resources Ltd"), Callinan J said at 107: Whether a purpose is a dominant purpose, is, in my view, a matter to be objectively determined but the subjective purpose will always be relevant and often decisive. 30 The test of "dominant purpose" has been expressed in terms of "clear paramouncy" (see Waugh v British Railways Board [1980] AC 521 at 543, Mitsubishi Electric Australia Limited v Victorian WorkCover Authority (2002) 4VR 332 at 336 - 337). In a different context, the High Court said in Commissioner of Taxation of the Commonwealth of Australia v Spotless Services Limited (1996) 186 CLR 404 at 416 (Brennan CJ, Dawson, Toohey, Gaurdron, Gummow and Kirby JJ): ... In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing, or most influential purpose. 31 I have examined Exhibits A and B to Mr Hammond's affidavit. Exhibit A under the heading "Purpose of Memorandum" states: The purpose of the memorandum is to seek legal advice through the Prosecutions Litigation & Advisings Unit of the Department of Primary Industries. Each page of this exhibit contains the notation "Confidential and Privileged - Prepared for the purpose of obtaining legal advice". 32 At the conclusion of Exhibit A under the heading "Legal Advice" the following appears: It is recommended that Prosecutions Litigations & Advisings Unit seek advice to: · confirm potential defendants and relevant breaches, · identify potential defences for all potential defendants, · advise whether a prima facie case exists for the identified breaches, and · advise on the prospects of success in each case. 33 The evidence of Mr Hammond is that the dominant purpose of preparing Exhibit A was to seek legal advice. 34 In my opinion, Exhibit A was prepared for the dominant purpose of obtaining legal advice. The claim for legal privilege in respect of this document is upheld. 35 Exhibit B, according to Mr Hammond's evidence, was prepared for the purpose of advising the Director General of the Department as to the progress of Mr Freeman's investigations of the matter as at 12 April 2007. Mr Freeman's view was that until the contents of Exhibit B were cleared for publication by the Director General, he considered this document to be confidential. I have compared the two reports and it is clear to me that the second document has been prepared out of the material contained in the first document. It has been prepared as a draft. Some of the sections and photographs are exactly the same in each of the documents. Mr Hammond's evidence was that Mr Freeman drafted Exhibit B based upon Exhibit A, it being an edited version of Exhibit A. The question therefore for determination is whether Exhibit B attracts legal privilege. 36 Mr Skinner submitted that the reasons for non-disclosure of Exhibit B were consistent with the Department's Guidelines in respect of investigations and prosecutions. Counsel emphasised, in particular the Investigation Policy which provides that "the Department will make available relevant information for investigations to industry, unions and the public in the interest of future prevention, unless there is some overriding requirement for confidentiality (for example, a pending prosecution which would justify deferring public dissemination of information) in which case, reasons for non-disclosure will be made available to the relevant parties." 37 Mr Jordan contrasted the headings in respect of the two documents as described in the affidavit of Mr Hammond and noted that Exhibit A included in its heading the words "confidential" and "privileged", whereas these words were not contained in the heading of Exhibit B. Having perused the two documents, document B does not contain the notation "prepared for the purpose of obtaining legal advice" or the further notations that I have set out earlier in these reasons found in Exhibit A. 38 Mrs Thompson referred to the Coal Mines Regulation Act 1982 (NSW) as being the Act under which Mr Freeman was appointed as a principal investigator. This Act, and the Mines Inspection Act 1901 (NSW) have been repealed and replaced by the Coal Mine Health and Safety Act 2002 (NSW) and the Mine Health and Safety Act 2004 (NSW). The repealed Acts had the same definitions, functions and reports for an investigator as the later Acts: see s 5; s 93C and s 93D of the Coal Mines Regulation Act and s 4, s 47H and s 47 I of the Mines Inspection Act. 39 The statutory functions of an "investigator" were to both investigate safety incidents and report to the Director-General. It followed, so it was submitted, that at all relevant times, Mr Freeman had an obligation under the relevant legislation to prepare a report on the incident. Counsel contended, therefore, that the purpose of the creation of both Exhibit A and Exhibit B was not for the dominant purpose of seeking legal advice, although that may have been an ancillary purpose. I have already found that the dominant purpose in respect of Exhibit A was to obtain legal advice. 40 Each counsel referred to various authorities where courts had considered a notice to produce and determined a claim of privilege. In Filipowski v Island Maritime Limited & Anor [2002] NSWLEC 177, Lloyd J in determining whether a notice to produce served on a prosecutor by the defendants should be set aside referred to the decision of the High Court in Attorney-General for the Northern Territory v Maurice and others (1986) 161 CLR 475. In that case Dawson J went on to consider whether a draft document may be privileged (at 496) stating: Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton [(1863) 2 H. & M. 1, at p. 4 [71 E.R. 357, at p. 358]), upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it. 41 As earlier observed, Exhibit B, from my inspection of it, appears to be a re-write of Exhibit A which I have found is clearly privileged. This document cannot be used as the report to the Director-General under s 47 I of the Mines Inspection Act 1901 or s 93D of the Coal Mines Regulation Act. Upon its finalisation, s 47 I(4) clearly indicated a legislative intention that the Director-General had a discretion as to whether or not to publish the report. In this case, the Director-General has not been provided with a final report and in any event, it remains in draft form. Because of its relationship to Exhibit A and having regard to the reasoning in Attorney General for the Northern Territory v Morrison, I consider Exhibit B is equally privileged. The claim for privilege is upheld. 42 The remaining issue is whether the Evidence Act and particularly s 123 applies to these proceedings. It is not immediately clear to me what its relevance is at this stage of the proceedings. However, because the parties argued this issue, I propose to deal with it. Mr Jordan argued that the provisions of the Evidence Act did not apply to the adducing of evidence and has no derivative application, at common law, to interlocutory processes, including the production of documents on subpoena, or pursuant to a notice to produce. Accordingly, it was submitted that the Evidence Act has no application to the notice to produce filed by the defendant, unless the provisions of the Evidence Act concerning client legal privilege (the term used in the Evidence Act) are applicable by operation of other statutory provisions: see Esso Australia Resources Ltd. This approach is also adopted by Mrs Thompson. 43 Mr Skinner contends that the provisions of the Evidence Act and those of the common law are relevantly equivalent, relying on Petroulias (No 22) at [54], [59] - [62] and [75]. 44 It is not entirely clear if the Commission's Rules have the effect of adopting the relevant provisions of the Evidence Act to the notice to produce filed by the defendants in these proceedings. The Evidence Act is not referred to in Pt 13 - General Procedure, Pt 14 - Summonses and Pt 27A - Proceedings for Offences of the Rules. The Evidence Act is referred to under Pt 22 - Discovery and Inspection of Documents. Although r 160, which is found in this part, refers to Pt 3.10, client legal privilege, of the Evidence Act, in my view, Pt 22 of the Rules could not have been intended to apply to criminal proceedings. 45 In Cahill v State of New South Wales (Department of Community Services) (2007) 161 IR 124, Boland J considered r 160 and its application to criminal proceedings, observing: [29] I am inclined to believe that r 160 does not apply to criminal proceedings, not only because it would be inconsistent with the general criminal law but also because: (1) To apply r 160 to pre-trial processes in criminal proceedings would give rise to an inconsistency with s 123 of the Evidence Act. The result of s 123 is that the right of a party to claim client legal privilege is lost where the evidence is sought to be adduced by an accused in a criminal proceeding, unless the accused is seeking the evidence from a co-accused. It would mean that s 123 would extend to pre-trial processes in criminal proceedings before the Industrial Court thereby potentially removing the current common law right of a prosecutor to claim legal professional privilege in relation to, for example, legal advice obtained relating to the prosecution; (2) Section 164(1)(c) (his Honour clearly intended this to be a reference to s 164(1)(b)) of the Industrial Relations Act ) provides that the Commission may exercise the functions ("function" is defined in the Dictionary to the Act as including a power, authority or duty) of the Supreme Court in relation to compelling the production, discovery and inspection of records and other documents. As I have noted, the Uniform Civil Procedure Rules 2005 and before that the Supreme Court Rules 1970 limited the application of the Evidence Act rules concerning privilege to pre-trial processes in civil proceedings. To interpret r 160 as applying to criminal proceedings would give the Industrial Court different powers in relation to pre-trial processes in criminal proceedings than those that may be exercised by the Supreme Court and there does not appear to be any reason why that should be so. 46 Although these comments were obiter, his Honour's reasoning is compelling and consistent with "the principle of statutory interpretation that a statute will not be interpreted to overturn a fundamental principle in the absence of a clear statement." A principle recently reaffirmed by the Court of Appeal in Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292. To my mind Boland J was correct in inclining to the view that r 160 was not intended to apply in criminal proceedings. 47 Mr Jordan submitted that in the absence of any adoption of the Evidence Act in relation to a notice to produce under r 86 of the Rules and given that there is no reference to the Evidence Act in relation to criminal proceedings under Pt 27 of the Rules, counsel contended that in accordance with the decision of the High Court in Esso Australia Resources Ltd, the common law applies in relation to the prosecutor's claim of legal professional privilege. 48 Although Mr Skinner argued that the Evidence Act applied in pre-trial interlocutory criminal proceedings before the Court, he submitted in his subsequent written submissions, that s 123 of the Evidence Act did not apply in this instance. The basis for this submission was that it was inappropriate to hold that s 123 of the Evidence Act was applicable to the pre-trial proceedings, whether or not it is applicable in a trial, by "an oblique process of a thicket of references in subsidiary legislation". This, it was submitted would be a fundamental change to an accepted and ancient prosecutorial practice. Mr Skinner referred to the guidelines of the office of the Director of Public Prosecutions in New South Wales, which he submitted have long been accepted as appropriately setting out the ancient common law duties. Counsel observed that the guidelines still retain a note that "legal professional privilege ordinarily will be claimed against the production of any document in the nature of an internal ODPP advising (e.g. a submission to the Director, submissions between lawyers and Crown Prosecutors). 49 As I have already observed, I agree with the observations of Boland J that r 160, being found in that part of the Rules that deals with discovery and which refers to Pt 3.10 of the Evidence Act does not apply in respect to criminal proceedings. The drafters of Pt 13 General Procedure of the Rules did not include any reference to the Evidence Act. Absent the clear intention of the draftsperson to include a reference to the Evidence Act, I am not prepared to invoke the provisions of r 85, particularly in light of the High Court's decision in Esso Australia Resources Ltd where it was made clear that, in the absence of statutory modification, the established practice and procedure in usage is that the common law principles of legal professional privilege apply to pre-trial procedures, such as a notice to produce. 50 In reaching this conclusion, I readily accept that this approach may be anomalous where the principles upon which privilege operates for the adducing of evidence in a court differ from those applicable at the interlocutory stage. However, it serves to highlight the need for the Rules of the Court to be reviewed, particularly in light of the introduction of the Uniform Civil Procedure Rules. The Rules do not appear to me to govern pre-trial production of evidence in summary criminal procedures. The position will be clearly different in respect to the production of a document to the Court at a time when the Court is to receive evidence in the trial itself. As Johnston J observed in Petroulias (No 22): [39] The provisions of the Evidence Act apply only to the adducing of evidence and have no derivative application, at common law, to interlocutory processes including the production of documents on subpoena: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 59-64; Mann v Carnell at 9-12. Accordingly, the Evidence Act has no application to the present situation unless the provisions of that Act concerning client legal privilege are applicable by operation of other statutory provisions. 51 It follows, in my view, that the Evidence Act does not apply in the summary criminal jurisdiction of this Court to the production of documents following the service of a notice to produce. The position is therefore governed by the common law rules which determine the existence of privilege. In Esso Australia Resources Ltd, the High Court held that the test at common law should be applied to discovery and inspection of documents. By the same reasoning, the common law test should apply to other pre-trial procedures, including the production of documents. 52 The defendants also took the Court to various authorities where the relationship between a prosecutor's duty of disclosure and a claim by the prosecutor of legal professional privilege had been considered: see R v Bunting and others (2002) 84 SASR 378; R v Ronen [2004] NSWSC 1305 at [17]; Petroulias (No 22) at [63]; Filipowski v Nikolaos (2004) 136 LGERA 157 at [15]. These cases were used to support a submission that this Court should accept that the prosecutor's duty of disclosure prevails over any claim of legal professional privilege at common law, or of client legal privilege pursuant to the Evidence Act. 53 Pain J in Filipowski v Nikolaos undertook an analysis of the reasoning in Bunting. In that case, Martin J determined that the commencement of criminal proceedings involved an imputed waiver by the prosecutor of privilege in relation to any previously confidential communication which fell within the duty to disclose ([73] - [74]). Her Honour declined to follow Bunting, concluding: [21] I am of the view that the position in New South Wales remains that once a prosecutor has made a valid claim for legal professional privilege at the pre-trial stage that claim alone is sufficient to bar production and no further enquiry as to whether such production is necessary in the interests of fairness should be made. Accordingly, I do not regard it as appropriate that I follow the reasoning applied by Martin J in Bunting. 54 I respectfully propose to follow the reasoning of Pain J. It is therefore not necessary for me to determine whether the material contained in Exhibits A and B fall within the prosecutor's duty of disclosure. ORDERS 55 I make the following orders: 1. The documents being Exhibits A and B to the affidavit of Mr Hammond, being documents to which legal professional privilege applies, need not be produced. 2. I reserve the question of costs. 3. The matters are listed for plea/directions at 9.30 am on Monday 2 February 2009. 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.