Land and Environment Court of New South Wales CITATION : Director-General of the Department of Land and Water Conservation v Prime Grain Pty Limited Director-General of the Department of Land and Water Conservation v Greentree [2001] NSWLEC 159 PROSECUTOR: Director-General of the Department of Land and Water Conservation PARTIES : DEFENDANTS: Prime Grain Pty Limited Ronald Lewis Greentree FILE NUMBER(S) : 50039; 50040; 50041; 50042; 50053; 50054 of 2001 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- subpoena - whether too wide - oppressive - requiring production to establish whether defendant has a defence is "fishing" LEGISLATION CITED: Griebart v Morris (1920) 1 KB 659; CASES CITED: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Waind v Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372 DATES OF HEARING: 05/07/01 DATE OF JUDGMENT: 07/25/2001 PROSECUTOR: Mr D J Galpin (Barrister) SOLICITORS: State Crown Solicitor's Office LEGAL REPRESENTATIVES: DEFENDENTS: Ms P M Lane (Barrister) SOLICITORS: Tress Cocks & Maddox JUDGMENT: IN THE LAND AND Matter No. 50039-42; 50053-54 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 25 July 2001 Director-General of the Department of Land and Water Conservation Prosecutor v Prime Grain Pty Limited Ronald Lewis Greentree Defendants REASONS FOR JUDGMENT 1. Upon application by the prosecutor the Court has issued a subpoena dated 18 June 2001 against Prime Grain Pty Limited ("Prime Grain") seeking the production of documents, which are numerated in the schedule to the subpoena. 2. By notice of motion dated 27 June 2001 the defendants, Prime Grain and Ronald Lewis Greentree, moved the Court for orders that the subpoena be set aside on the basis of it being an abuse of process "in that it amounts to fishing; is oppressive and vexatious, and otherwise amounts to an abuse of process" . 3. Notwithstanding that Prime Grain is a defendant in some of the proceedings it is still necessary that the prosecutor state with reasonable particularity the documents which are to be produced ( The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574). 4. In Waind v Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372, Moffitt P, with whom Hutley and Glass JJA agreed, explained how the Court might determine whether documents have apparent relevance to the issues. In summary, he referred to what is reasonably likely to add to the relevant evidence in the case in the proper conduct of the litigation. The then President went on to say that provided the documents are apparently relevant or are on the subject matter of the litigation then inspection will normally be allowed (at p 385). 5. Furthermore, the subpoena will be held to be oppressive or an abuse of process if the documents appear not to be sufficiently relevant to the proceedings and the production of the documents will impose an excessive burden on the person to whom the subpoena is addressed ( Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 926). 6. A subpoena can only be properly used for the production of documents described in particular or general terms where it does not involve an obligation to form a judgment as to what is relevant to the issue joined in the proceeding. The question of whether the terms of a subpoena are so wide that it is oppressive requires an assessment of the nature of the task imposed in order to collect and produce the documents ( Waind at 382). 7. Each of the numbered paragraphs of the subpoena, that are dealt with separately below, is subject to challenge. Paragraphs 1 and 2 8. Paragraphs 1 and 2 of the subpoena require the production of all documents recording or showing trees on two properties, namely Eastwood or Yarrawa, in the period 1 October 1997 to 30 June 2000. 9. Firstly, Ms Lane, who appears on behalf of the defendants, submits that these paragraphs require Prime Grain to carry out a global search of all records in respect of both properties without making discernment between trees generally and other types of vegetation. It is to be noted in this respect that the summons alleges removal of native vegetation in accordance with a statutory definition from only parts of the respective properties. 10. The defendants submit that although the prosecutor may not know specifically what documents are held by Prime Grain, it nevertheless must have an appreciation of the type of vegetation that is alleged to have been removed, being native vegetation. Moreover, the summons refers to the subject land as being comprised "in part" of specified lots in a nominated deposited plan. The period covered by the subpoena, namely 1 October 1997 to 30 June 2000, is wider than the period alleged in the summons, namely 25 March 1999 to 16 May 2000. 11. Although the inquiry demanded by the subpoena relates to documents in respect of the whole of the two properties and does not discriminate between trees generally and native vegetation, nevertheless, the Court is satisfied that the documents called for could possibly throw light on the issues in the proceedings, more particularly, by comparison of the vegetative state of the properties before and after the relevant dates. 12. The complaint by Prime Grain that it is required to make a judgment about what is a "tree" for the purposes of answering the subpoena is not, in my opinion, sustainable. Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 13. Paragraphs 3, 5, 7 and 9 require the production of all documents recording or showing the terms of contracts of employment between Prime Grain and any employee who carried out the clearing of trees on either property in the period 25 March 1999 to 16 May 2000; documents recording or showing payments made by Prime Grain to those employees; all documents recording or comprising each agreement between Prime Grain and any person who carried out clearing of trees on either property in the same period as an independent contractor and documents recording or showing payments made by Prime Grain to those independent contractors. 14. Paragraphs 4, 6, 8 and 10 require the production of all documents recording or showing the terms of contracts of employment between Greentree Farming and any employee of Greentree Farming who carried out the clearing of trees on either property in the period 25 March 1999 to 16 May 2000; all documents recording or showing payments made by Greentree Farming to any employee; all documents recording or comprising each agreement between Greentree Farming and any person who carried out clearing of trees on either property in the same period as an independent contractor and all documents recording or showing payments made by Greentree Farming to those independent contractors. 15. Greentree Farming is defined to mean the business trading under the name Greentree Farming registered with the Department of Fair Trading and having the identifying registration number M2775028 and includes the providers of that business, namely Mr Ronald Lewis Greentree and Ms Maree Ann Greentree of "Oreel" , Rowena in the state of New South Wales and Merriwinebone Pty Limited. 16. Prime Grain repeats the earlier submission in relation to the description of the properties. 17. The period 25 March 1999 to 16 May 2000 is the period referred to in the summonses. 18. Ms Lane submits that as Ronald Lewis Greentree is also a defendant in some of the proceedings the prosecutor is seeking documents from a person who is entitled to the benefit of the privilege against self-incrimination. This submission appears to ignore the fact that Mr Greentree is a separate legal person to the corporation. The latter does not have privilege against self-incrimination. Furthermore, Greentree's privilege does not extend to the production of documents by a third person. 19. Notwithstanding the lack of privilege as claimed, the paragraphs of the subpoena are too wide in that they require production of documents and records of contracts, payments and agreements with employees and independent contractors irrespective of their relevance to the period in question. The task involves identifying all employees or independent contractors who carried out clearing on either property during the relevant period. This might be a relevant inquiry in itself. However, by the terms of the subpoena Prime Grain is then required to search for and produce documents and records which may have no relevance to that period. 20. Accordingly, the Court finds that all of the paragraphs 3 to 10 are too wide and therefore oppressive and hence an abuse of process. Paragraphs 11 and 12 21. Paragraphs 11 and 12 of the subpoena require the production of all documents relating to the sale or delivery of fence posts or firewood derived from trees on either property in the period 25 March 1999 to 16 May 2000. 22. In Small, at p 573, Jordan CJ described a subpoena to produce documents as a writ issued by the court on behalf of the party to a cause or matter commanding a person to attend before the court to give evidence, "and also to search for, bring and produce to the Court some document or documents relating to the cause or matter" . The defendants rely upon the further statement of the then Chief Justice who said that in the absence of special circumstances a party is no more entitled to use a subpoena duces tecum than to use a summons for interrogatories for the purpose of "fishing" including "to discover the nature of the other side's evidence" : Griebart v Morris (1920) 1 KB 659 at 666 ( Small at p 575). The documents that Prime Grain are required to produce under paragraphs 11 and 12 relate to a defence to the charges. 23. Notwithstanding the observations made by Jordan CJ in Small , the prosecutor says that there is no authority for the proposition that it is an abuse of process for the prosecutor in a subpoena to seek documents relevant to a potential defence. 24. It is not necessary for the prosecutor to prove that timber was used for the purpose of fence posts or firewood in order to establish the offence was committed by the defendant. Paragraphs 11 and 12, therefore, are not directed to evidence that form part of, or could be relevant to, the prosecutor's case. Accordingly, it is not appropriate to use a subpoena, particularly against a party in criminal proceedings, to seek the production of documents in order to establish whether the defendant has a defence to the charges. According to the former Chief Justice that is a "fishing" exercise. Conclusion 25. For the above reasons, paragraphs 3 to 12 of the subpoena are struck out. 26. Prime Grain, as the person to whom the subpoena is addressed, is entitled to an order for its costs of the notice of motion. 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.