Land and Environment Court of New South Wales CITATION : Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 3) [2008] NSWLEC 148 PROSECUTOR Wollongong City Council PARTIES : DEFENDANTS Ensile Pty Limited & Robert Martin (aka Bob) Hogarth FILE NUMBER(S) : 50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007 CORAM: Jagot J KEY ISSUES: Prosecution :- claim for privilege - whether prosecutor's claim can be maintained against defendants - s123 Evidence Act - adducing evidence - call for production - privilege lost by reason of s123 LEGISLATION CITED: Evidence Act 1995 DATES OF HEARING: 16 April 2008 EX TEMPORE JUDGMENT DATE : 16 April 2008 PROSECUTOR Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton SOLICITORS Kells the Lawyers LEGAL REPRESENTATIVES: DEFENDANTS Mr T F Robertson SC with Mr T G Howard SOLICITORS Burrell Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 16 April 2008 50019 of 2007 50047 of 2007 WOLLONGONG CITY COUNCIL Prosecutor ENSILE PTY LIMITED Defendant 50021 of 2007 50048 of 2007 WOLLONGONG CITY COUNCIL Prosecutor ROBERT MARTIN (AKA BOB) HOGARTH Defendant JUDGMENT Jagot J: 1 In this aspect of the matter, the defendants have called for production of various documents over which the prosecutor asserts a claim for legal professional privilege under s 119 of the Evidence Act 1995. 2 The call includes but is not limited to documents constituting an email chain between Mr Meusburger, who is presently giving evidence, and the Council's solicitor in relation to his draft affidavit, as well as communications in the same chain with other Council officers. 3 The defendants rely on s 123 of the Evidence Act which provides that: 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. 4 This call does not in any way relate to associated defendants. Accordingly, the defendants say that the Council as prosecutor cannot rely on s 119 (which is part of Div 1 of Pt 3.10) to maintain a privilege in the face of the clear opening words to s 123. 5 The defendants say that the prosecutor's argument that s 123 only operates with respect to "adducing evidence" and not with respect to the inspection of documents pursuant to a call is inconsistent with the way in which the Evidence Act works. In particular Ch 2 is specifically concerned with adducing evidence. It contains provisions providing various mechanisms to adduce evidence, specifically ss 35 and 45. In short the defendants say that when consideration is given to those provisions, it is reasonably clear that the concept of adducing evidence under the Evidence Act is broader than the mere tender of a document. Calling for production of documents and inspecting those documents is a method of adducing evidence within the meaning of the Act. Accordingly, s 123 operates more broadly than allowed for by the prosecutor. 6 I accept the defendants' submissions. The terms of s 123 expressly contemplate a claim for legal professional privilege in criminal proceedings as sub paragraphs (a) and (b) disclose. Given that sub paragraphs (a) and (b) specifically deal with associated defendants and defendants can make their own decisions whether or not to waive legal professional privilege, s 123 must be principally directed at a claim for legal professional privilege by a prosecutor. 7 It is difficult to see how the section can operate other than in the way contended for by the defendants in this matter. Even if "adducing evidence" has the narrow meaning suggested by the prosecutor, a defendant cannot tender a document which it does not have in its possession. That problem can be resolved by treating the words "adducing evidence" in a manner consistent with the structure and provisions of the Evidence Act itself, namely, by treating a call for production of documents as an aspect of adducing evidence, as Ch 2 itself suggests is the case. 8 It follows that s 123 operates in accordance with its terms and the prosecutor's claim for privilege cannot be maintained. **************************** 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.