Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estriech v Leon [2012] NSWIRComm 84 Hearing dates: 9 July 2012 Decision date: 07 August 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Certain items in summonses to produce set aside otherwise application dismissed Catchwords: INTERLOCUTORY PROCEEDINGS - Application to set aside summonses to produce - Principles to be applied - Certain items in summonses set aside otherwise application dismissed Legislation Cited: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Chevalley v Industrial Court of New South Wales [2011] NSWCA 357; (2011) 288 ALR 761; (2011) 212 IR 91 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 GB, by his tutor, FB v Western Sydney Area Health Service [2010] NSWSC 181 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Limited v Moebes [2009] NSWSC 306 In the matter of One.Tel Ltd (in liq) - Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491 Liristis v Gadelrabb [2009] NSWSC 441 National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Ragg v Magistrates' Court of Victoria [2008] VSC 1 R (Commonwealth) v Baladjam (No 29) [2008] NSWSC 1452 R v Saleam [1999] NSWCCA 86 Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327; (2003) 57 NSWLR 310 Seven Network Ltd v Australian Competition and Consumer Commission (ACCC) [2004] FCAFC 267; (2004) 140 FCR 170 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd; Kirby v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Category: Interlocutory applications Parties: Inspector Pamela Estriech (Prosecutor/Respondent on the motion) Christopher Guy Leon (Defendant/Applicant on the motion) Representation: Mr C Magee of counsel with Mr B Fogarty of counsel (Prosecutor/Respondent on the motion) Mr B Shields of counsel with Mr R Rankin (Defendant/Applicant on the motion) WorkCover Authority of New South Wales Prosecutor/Respondent on the motion) Norton Rose Australia (Defendant/Applicant on the motion) File Number(s): IRC 1490 of 2011 IRC 1492 of 2011 IRC 1493 of 2011 INTERLOCUTORY Judgment 1Christopher Guy Leon is a director of Cement Australia Pty Ltd ("Cement"), Cement Australia Holdings Pty Ltd ("Holdings") and Cement Australia (Kandos) Pty Ltd ("Kandos"). In those capacities Mr Leon has been charged with contravening the Occupational Health and Safety Act 2000 ("the Act") in a number of respects related to an incident on 13 September 2009 at Kandos when Colin David Fuller, an employee of Holdings, suffered fatal crush injuries when it appeared he attempted to remove a blockage in a hopper that fed limestone onto a conveyor. 2Specifically, it was alleged Mr Leon, being a director of Kandos, contravened s 8(2) and in the alternative s 10(2) of the Act by virtue of s 26(1) of the Act (Matter No IRC 1490 of 2011), that being a director of Holdings he contravened s 8(1) and in the alternative s 10(2) of the Act by virtue of s 26(1) of the Act (Matter No IRC 1492 of 2011) and that being a director of Cement he contravened s 10(2) by virtue of s 26(1) of the Act (Matter No IRC 1493 of 2011). 3Thus, in relation to the Kandos charge, it was alleged that: CHRISTOPHER GUY LEON ... ('the defendant') being a director of Cement Australia (Kandos) Pty Ltd ('the company') a corporation whose registered office is situated at Level 2, 40 McDougall Street, Milton in the State of Queensland, by virtue of section 26(1) of the Act is taken to have contravened section 8(2) of the Act in that the company being an employer, on 13 September 2009 at 16 Jamieson Street, Kandos in the State of New South Wales ('the premises') FAILED TO ensure, by its acts and omissions as particularised below, that persons not in its employment, and in particular Colin David Fuller, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work, contrary to section 8(2) of the Occupational Health an Safety Act 2000. 4The charge identified some 11 particulars alleging the acts or omissions. The charge then alleged in the alternative that Mr Leon: [A] director of Cement Australia (Kandos) Pty Ltd ('the company'), by virtue of section 26(1) of the Act is taken to have contravened section 10(2) of the Act in that the company, being a person which had control (including limited control) of plant in the course of its trade, business or other undertaking, used by people at work (other than its employees), and in particular, Colin David Fuller, on 13 September 2009 at 16 Jamieson Street Kandos in the state of New South Wales ('the premises) FAILED TO ensure, by its acts and omissions as particularised below, that the plant was safe and without risks to health when properly used, contrary to section 10(2) of the Occupational Health and Safety Act 2000. 5Then followed a further 13 particulars. The charge in Matter No IRC 1490 of 2011 is set out in full in the attachment to this judgment. The other two charges were similarly framed. 6The proceedings in the three matters were listed for hearing of not guilty pleas in August 2012. However, the hearing dates were vacated pending the outcome of proceedings in the Court of Appeal, where Mr Leon has challenged the validity of the charges against him. 7On 2 July, Mr Leon filed a notice of motion seeking to set aside six summonses to produce filed by the respondent and served on various entities. The orders sought were in the following terms: 1. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to Cement Australia (Kandos) Pty Ltd in proceedings IRC No. 1490 of 2011; 2. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to Cement Australia Holdings Pty Ltd in proceedings IRC No. 1492 of 2011; 3. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to Cement Australia Pty Ltd in proceedings IRC No. 1493 of 2011; 4. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to Advitech Pty Ltd in each of the proceedings IRC Nos. 1490 of 2011, 1492 of 2011 and 1493 of 2011; 5. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to SAI GLOBAL Ltd in each of the proceedings IRC Nos. 1490 of 2011, 1492 of 2011 and 1493 of 2011; and 6. an order setting aside the summons to produce filed by the Prosecutor on 19 June 2012 and addressed to Maceco Pty Ltd in each of the proceedings IRC Nos. 1490 of 2011, 1492 of 2011 and 1493 of 2011. 8It was variously asserted by the applicant on the motion that the issue of the summonses was an abuse of process, that the summonses constituted a fishing expedition by the respondent, that the summonses were oppressive, that a number of the documents sought in the summonses had already been provided to the respondent by virtue of notices under s 62 of the Act and other means and that no hearing date had been set regarding the charges. 9The summons served on Cement sought the majority of documents and did so under 21 items listed in the summons. The other five summonses sought the same documents identified in various items in the Cement summons as well as different documents in the case of Kandos and Holdings. For example, the summons served on Kandos sought the same documents as those in the Cement summons except such documents as board reports and minutes of board meetings peculiar to Kandos. It was similarly the case with Holdings. The summons served on Advitech Pty Limited sought the same documents identified in item 14 of the Cement summons, the summons served on SAI GLOBAL Limited sought the same documents identified in item 12 of the Cement summons and the summons served on Maceco Pty Ltd sought the same documents identified in item 8 of the Cement summons. Nature of the proceedings 10The proceedings are criminal in nature, the applicant having been ordered, pursuant to s 246(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996, to appear before the Court to answer to the alleged offences charged by the respondent. 11The charges have been brought against a director and in all three charges reliance is placed on s 26 of the Act as it applied at the time of the alleged offences. That section provided: 26 Offences by corporations-liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 12Noting the challenge by the applicant in the Court of Appeal involving the issue of the proper form of the charge against a person in the position of the applicant, the decision in Chevalley v Industrial Court of New South Wales [2011] NSWCA 357; (2011) 288 ALR 761; (2011) 212 IR 91 at [46] per Bathurst CJ (with whom Allsop P, Beazley JA, Basten JA and Sackville AJA agreed) explained the effect of s 26(1): [46] ... Section 26(1) provides that when a corporation by act or omission contravenes any provision of the Act, the director or person concerned in management is taken to have contravened the same provision unless one of the defences in s 26(1)(a) or s 26(1)(b) is made out. The effect of the section is that the director is taken to have contravened the same provision. Although the legislation does not say that the director or person concerned in management is taken to have committed the same act or omission as the corporation, the expression, "taken to have contravened the same provision" means, in the context of which it appears, liability for the same act or omission which constituted the contravention. It follows that in proceedings against the director or persons concerned in management in reliance on s 26, the relevant act or omission is the act or omission for which the corporation is liable. 13Thus, it is necessary for the prosecutor to plead the acts or omissions of the corporation and in order to succeed in the prosecution of a charge against a director the prosecutor must prove those acts or omissions by the corporation. This explains, in part, why it was the respondent, in her summonses to produce, sought certain documents from each of the corporations of which the applicant is a director; the respondent needs to prove contraventions by those corporations. Relevant principles 14The summonses filed by the respondent were summonses to produce purportedly issued in accordance with the power under s 165 of the Industrial Relations Act, which relevantly provides: (1) A summons for the purposes of this Act is to be issued by the Industrial Registrar. (2) Any such summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the rules of the Commission. (3) Any such summons may require a person to do any one or more of the following: ... (c) attend and produce documents or other things. 15It would seem to be established that a summons or notice to produce is the equivalent of a subpoena: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115; GB, by his tutor, FB v Western Sydney Area Health Service [2010] NSWSC 181; Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100. However, the applicant appeared to contend that if the purpose in issuing the summonses was "investigative", the Registrar would not be authorised to issue the summonses and they would be liable to be set aside. 16It was not entirely clear what point the applicant was seeking to make by this contention. It may be accepted that if the summonses were tantamount to discovery then they could be set aside. However, the applicant appeared to suggest that because the proceedings were criminal in nature the Registrar lacked power to issue the summonses because the summonses were not issued "for the purposes of this Act". This contention was not pressed with any force. 17Section 168(1) of the Industrial Relations Act provides that proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. Section 168(2) applies Pt 5 of Ch 4 of the Criminal Procedure Act 1986 to proceedings for an offence taken before the Commission in Court Session. Section 105 of the Occupational Health and Safety Act provides that proceedings for an offence against that Act or the regulations are to be dealt with summarily: (a) before the Local Court, or (b) before the Industrial Relations Commission in Court Session. 18The applicant did not contend the proceedings were not brought under s 168 of the Industrial Relations Act or that the Court lacked power to hear and determine the prosecutions (subject to the s 26 challenge). It is apparent that a summons issued in proceedings under s 168 of the Industrial Relations Act is a summons issued for the purposes of that Act. I, therefore, reject the contention that there was no power under s 165 of the Industrial Relations Act to issue the summonses. 19A subpoena, or in this case summons, may be set aside on the ground that it was improperly issued and an abuse of the power where it is used for the purpose of discovery: National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 at 382. Similarly, where a summons which imposes upon a stranger the task of forming a judgment whether a document relates to issues between the litigants imposes an obligation upon the stranger tantamount to discovery and is, for that reason, an abuse of process: Waind at 382; Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93 at [16]. However, a summons requiring production of documents "relating to" a specified subject matter may not be objectionable: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd; Kirby v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 718. 20There is a significant overlap between considerations as to whether what is sought in a summons is relevant to an issue in the proceedings, whether it is oppressive and whether it constitutes impermissible "fishing": In the matter of One.Tel Ltd (in liq) - Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [27]. However, it is clear that a summons may be set aside as an abuse of process if it imposes an obligation upon the recipient that is considered by the court to be oppressive such that, for example, it is "too wide and uncertain": Southern Pacific Hotel at 717, 720. 21A fishing expedition can "never be allowed" Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 at 414. In that respect, it is not legitimate to subpoena documents if what a party is doing is trying to get hold of documents to see whether they may assist the party in their case or to see whether they have a defence: R (Commonwealth) v Baladjam (No 29) [2008] NSWSC 1452 at [18]. However, in Liristis v Gadelrabb [2009] NSWSC 441, Brereton J observed at [5]: [5] ... It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena. 22It is also clear from the authorities that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough" and a party must identify a legitimate forensic purpose for which access is sought: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65. 23Chidgey concerned criminal proceedings in which the Commissioner of Police sought an order that part of the subpoena issued by the respondent be set aside as an abuse of process on the ground that there was no legitimate forensic purpose in seeking access to those documents. Beazley JA delivered the principal judgment (James and Kirby JJ agreeing). Her Honour first referred to the "basic principle" stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: ... a party is no more entitled to use a subpoena... than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ... 24Beazley JA next stated: [59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "... the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. 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." (emphasis added) [60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "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 which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may 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." [61] Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. [62] Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to "mere relevance". However, each applied a test of "forensic purpose" and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. [63] But in any event (and contrary to the respondent's submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina (2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6]. 25Beazley JA stated the correct test to be applied at [64], as follows: [64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was." 26It has also been held that the documents sought to be produced must be identified with reasonable particularity (see Weston at [39] and the reference there to Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926) and with clarity to ensure that the recipient knows what information is required to be provided (see Weston at [39] and the reference to Seven Network Ltd v Australian Competition and Consumer Commission (ACCC) [2004] FCAFC 267; (2004) 140 FCR 170 at [49]; [70] per Sackville and Emmett JJ). If the documents are not described with sufficient particularity the summons is liable to be set aside: Waind; Commissioner for Railways v Small. 27I note that in Chidgey where the Court of Appeal adopted the test in R v Saleam [1999] NSWCCA 86, Beazley JA considered other statements of the test (Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327; (2003) 57 NSWLR 310 per Adams J and Ragg v Magistrates' Court of Victoria [2008] VSC 1 per Bell J). However, her Honour saw no reason to depart from the language used by Simpson J in Saleam. 28In Weston, Ward J observed at [30] that in civil proceedings, the "on the cards" test had not been broadly embraced and that it was more generally to be used in the context of criminal (not civil) proceedings: at [29]. Her Honour referred to the civil case of ICAP Pty Limited v Moebes [2009] NSWSC 306 where Nicholas J held that for a notice to produce to have a legitimate forensic purpose: [I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. 29The present proceedings are, of course, criminal. However, the prosecutor filed the summons, whereas in Chidgey and in Saleam it was the applicants that sought orders for the production of documents. Nevertheless, the discussion by Tobias JA in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, comparing the test of "on the cards" and the test applied by the primary judge, Nicholas J, namely, "it must be shown that it is likely [that] the documentation will materially assist on an identified issue", suggests that the tests may not be materially different. At [22] Tobias JA (with whom Basten JA and Handley AJA agreed) stated: [22] As to his Honour's use of the expression "it must be shown that it is likely [that] the documentation will materially assist on an identified issue" and his alternative statement that there be a "reasonable basis beyond speculation that it is likely" the documentation will so assist, I do not regard his use of the word "likely" as being any different in the context of a case such as the present to the expression "on the cards" which finds its genesis in the judgment of Gibbs CJ in Alister at 414. The word "likely" has a number of different shades of meaning depending on the context in which it is used and in the present context I see no reason to regard his Honour's use of the word as having any different meaning to the concept to which the Chief Justice was referring in Alister and which his Honour articulates at [27] of his judgment. 30I have referred to the different statements of the test because it is the prosecutor seeking documents as opposed to the applicant, which is the reverse of the situation in Chidgey and Saleam. I was concerned that a stricter test perhaps should be applied and that is why I considered whether there was a test applied in civil proceedings that might be regarded as more strict in order to protect the interest of a defendant in criminal proceedings. However, given the analysis of Tobias JA in ICAP, that would not appear to be the case. 31Accordingly, for my purposes, I consider the correct test is that determined in Saleam and confirmed in Chidgey, namely: Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. In adopting this test I regard "on the cards" as being no different to "likely". 32Finally, I note the judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 where his Honour held that an application to set aside subpoenas which are an abuse of process may be made not only by persons to whom the subpoenas are addressed, but also by a party to litigation and any other person who might be shown to have a legitimate interest in having the subpoenas set aside. Cement summons 33With the foregoing principles in mind, I turn to the Cement summons. The applicant would have it that none of the documents sought in the summons were required to be produced because the summons in one way or another offended the principles identified above. I do not accept that is the case. Whilst there are a small number of items that should be set aside, in opposing all of the summonses and seeking to have the whole of them set aside the applicant was forced to the point of nitpicking. For example, objection was taken to the well-known and understood phrase "on or about" as being too vague. 34The summons served on Cement is the principal summons. Under items 1 and 2 the summons sought the following: All monthly board reports of Cement Australia Pty Limited [ACN 104 053 474] prepared by Christopher Guy Leon for the period 1 July 2007 to and including 13 September 2009. All minutes of board meetings of Cement Australia Pty Ltd [ACN 104 053 474] for the period 1 July 2007 to and including 13 September 2009. 35The applicant contended these items lacked specificity and sought over two years of reports and minutes dealing with all manner of matters that had no relevance to the charges. The item does not lack specificity; it seeks monthly board reports prepared by Mr Leon and board minutes for a 27 month period preceding and up to and including the date of the alleged contraventions. The provision of 27 board reports and minutes would not appear to be onerous and would likely serve a legitimate forensic purpose in that it is on the cards the reports and minutes would deal with something as important as occupational health and safety matters and Mr Leon's involvement in such matters, given he was the managing director and chief executive of Cement. In my opinion, there is a reasonable basis to believe board reports and minutes would address measures taken by Cement regarding the safety of employees including the guarding of machinery, safety audits, risk assessment and assessment of worker competency, all matters relevant to the charges. 36It is also likely the board reports and minutes would materially assist the respondent in relation to the defences under s 26(1) of the Act in the event the applicant continues with a plea of not guilty. Section 26(1) places the onus on a defendant to show he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the relevant provision of the Act, or he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. The prosecution is entitled to challenge those defences and it is on the cards the board reports and minutes would assist in that regard. 37It may be accepted the board reports and minutes deal with matters that are not relevant to the respondent. It does seem to me, however, that it would be more oppressive on Cement to have to redact the reports and minutes to remove reference to matters not dealing with occupational health and safety than it would to simply provide copies of the reports and minutes. If there is commercially sensitive information (a matter not raised) that could be dealt with appropriately by the parties. 38Item 3 called for the production of the following documents: All reports concerning the plant reviews of the Cement Australia (Kandos) Pty Limited [ACN 004 158 972], Kandos site, situated at 16 Jamieson Street, Kandos, New South Wales (herein referred to as 'the Kandos site') as conducted by Christopher Guy Leon, Paul McNay and Melinda Horton for the period 1 January 2008 to and including 13 September 2009. 39Again, the applicant submitted this item lacked specificity and was oppressive in asking for all plant reviews and not reviews limited to the charge. The item, in my opinion, is quite specific. "Report" is a plain English word that does not require elaboration. The respondent obviously is aware reports of the kind sought exist because she has named the individuals responsible for them and the relevant period, so it does not amount to a fishing expedition. 40A plant review is likely to be of material assistance. The charges allege the corporations failed to ensure plant was safe. That the plant reviews may address plant not the subject of the charge is not a reason to set aside the summons. As with board reports it may be more oppressive to edit the reports on plant reviews than simply provide the whole report. In any event, it is not beyond speculation that it is likely the plant reviews would materially assist in relation to the need for the prosecution to deal with the defences in the event not guilty pleas are maintained. 41Item 4 called for the production of the following documents: All monthly reports documenting "SHE performance, incidents, injuries and investigations" for the Kandos site for the period 1 November 2006 to and including 13 September 2009. 42Production of the documents under item 4 would require about 34 reports to be produced of a specific nature. The reports are clearly relevant and it is likely that such reports would materially assist the prosecution both in respect of proving the particulars of the offence (eg, failure to ensure plant was safe; failure to provide a safe system of work and working environment) and addressing any defence under s 26(1)(b). 43Item 5 called for the production of the following documents: All relevant "Site audit outcomes" reports for the Kandos site generated by the Safety Health, Environment and Compliance division (herein referred to as 'SHEC') and provided quarterly to the Board of Cement Australia Pty Limited [ACN 104 053 474] for the period 1 March 2008 to and including 13 September 2009. 44Whilst it may be the case that the prosecution has to prove a contravention of the corporation, Cement is not a defendant in the proceedings. It is arguable that Cement should not be regarded as a stranger to the litigation, especially when it is the subject of separate prosecution proceedings in relation to the same incident. However, I intend to take a cautious approach and regard Cement as a stranger. 45By the use of the word "relevant" in item 5 the respondent is seeking to impose upon a stranger the task of forming a judgment as to which reports are relevant to the litigation. To do so is impermissible: Waind. Item 5 is set aside. 46Item 6 called for the production of the following documents: All quarterly brief reports from the General Manager of SHEC to the Safety, Health and Environment Compliance Committee (herein referred to as 'SHE Compliance Committee') for the period 1 March 2008 to and including 13 September 2009. 47It was contended the description of the documents "quarterly brief reports" in item 6 was too broad. I disagree. It is apparent that the respondent is aware of the existence of specific documents answering the description. I do not regard the summons as too broad or oppressive, seeking as it does six reports from an identified manager to an identified Committee in an identified timeframe. It may reasonably be assumed that the Safety, Health and Environment Compliance Committee had a responsibility regarding compliance with the corporation's safety, health and environment policies and procedures. The charge (in Matter No IRC 1493 of 2011) alleges that Cement failed to provide a safe system of work and working environment and failed to ensure plant was safe. It is, therefore, on the cards that reports from the General Manager of the corporation's Safety, Health, Environment and Compliance division to the Committee would materially assist the respondent's case. 48Item 7 called for the production of the following documents: All reports of bi-annual 'Communication Sessions' conducted by Christopher Guy Leon and any other member of the executive of Cement Australia Pty Limited [ACN 104 053 474] for the period 1 July 2007 to and including 13 September 2009. 49The only aspect of item 7 that could be regarded as remotely vague is the reference to "member of the executive", which could easily be overcome by a simple request from Cement to the respondent for clarification, if clarification were necessary. Again, it is apparent that the respondent knows of the existence of reports referred to in item 7 because she has referred specifically to reports of bi-annual 'Communication Sessions' conducted by specified individuals. 50However, the respondent has not identified, either by evidence or submissions, a legitimate forensic purpose in seeking the reports in item 7. The Court has no idea what these reports are about and has no way of assessing what purpose they would serve. Item 7 is set aside. 51Item 8 called for the production of the following documents: All records of the engagement of Maceco Pty Ltd ACN 133 699 804 by Cement Australia Pty Limited [ACN 104 053 474], Cement Australia Holdings Pty Limited [ACN 001 085 561] and Cement Australia (Kandos) Pty Limited [ACN 004 158 972], to install machine guarding on and around the C2 and C3 stone tunnels at the Kandos site for the period 1 January 2009 to 31 December 2009. 52It was submitted "records of engagement" was too broad and that item 8 called for the production of documents post-incident, which could not be relevant to the charge. The summons, plainly enough, is seeking any records held by Cement that shows the engagement of Maceco by Cement, Kandos or Holdings to install machine guarding on and around the C2 and C3 stone tunnels at the Kandos site for the period 1 January 2009 to 31 December 2009. The request is quite particular and would obviously serve a legitimate forensic purpose because the charges allege, inter alia, a failure to install guarding "at all crush points located in the stone tunnels ..." 53Relevantly, to "engage" is to "secure for aid, employment, use etc" (Macquarie Online Dictionary, 2012). Thus, what are being sought are records that show whether and when the services of Maceco were secured to install the machine guarding. As for records post incident, such records may well be relevant to enable the respondent to deal with any defence under s 26(1). 54Item 9 called for the production of the following documents: All relevant CHIL database records documenting incidents involving machine guarding at the Kandos site for the period 1 July 2007 to and including 13 September 2009. 55I take the same view about this item as item 5. It is not for Cement to determine what is, or what is not, relevant. Item 5 is set aside. 56Item 10 called for the production of the following documents: All records relating to CHIL #1497 (the report of the fatality of Colin Fuller at the Kandos site on 13 September 2009) as referred to in the SHE Compliance Committee Meeting minutes of 21 Nov 2009. 57The applicant submitted the records referred to in item 10 were sought by the respondent under a notice served under s 62 of the Act. The applicant objected on the grounds of legal professional privilege and the applicant contended the respondent did not press for production. 58That may have been the case in respect of the s 62 notice, but in order to resist production under the summons the Court has to be satisfied privilege applies. The Court is not so satisfied. The records, which obviously meet the required tests, should be produced unless the Court is satisfied the records are subject to legal professional privilege. 59Item 11 called for the production of the following documents: All documents detailing the quarterly reviews of critical elements at the Kandos site as generated by the corporate SHEC team for the period 1 March 2008 to and including 13 September 2009. 60The respondent has not identified, by way of evidence or submissions, what legitimate forensic purpose the documents in item 11 would serve; the respondent has not indicated how the documents are relevant in the sense that it may assist her case. Item 11 is set aside: 61Item 12 called for the production of the following documents: All documents detailing the inspections, internal audits and external audits conducted by SAI GLOBAL Limited ABN 67 050 611 642, National Association of Testing Authorities, Department of Primary Industries and Department of Environment, Climate Change and Water at the Kandos site for the period 1 July 2007 to and including 13 September 2009. 62The objection taken by the applicant to item 12 was that it constituted a fishing expedition. I do not agree. The item seeks specific documents relating to specific audits carried out by specific organisations in relation to a specific site over a specified period. The documents clearly would serve a legitimate forensic purpose, it having been alleged there was a failure to undertake certain audits relating to the guarding of plant. 63The fact that the respondent also sought production of the same documents from SAI GLOBAL is no basis to conclude the respondent was fishing. Cement may not have all of the documents in its files or vice versa. 64Item 13 called for the production of the following documents: The January 2009 Occupational, Health and Safety Management System audit report, which includes the audit of the C2 and C3 Stone Tunnels conducted at the Kandos site by 'Henry', an internal compliance manager at the Kandos site and received by Greg Nicholas. 65The applicant's objection was essentially that the item was too vague and oppressive. On the contrary, the item is very specific. It seeks a particular January 2009 audit report conducted by an internal compliance manager named "Henry" which was received by a named individual, Greg Nicholas. The respondent is obviously aware of the particular document, so it is not fishing and the document would appear to serve a legitimate forensic purpose dealing as it does with the question of audits in the relevant stone tunnels. 66Items 14 to 18 called for the production of the following documents: The external site guarding survey dated on or about 31 May 2002 as undertaken at the Cement Australia (Kandos) Pty Limited ACN 004 158 972 Kandos site by Advitech Pty Limited (ACN) 003 433 458. The document entitled or containing the words 'machine guarding procedure KA - SW- 127' dated on or about 26 April 2004 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008. The survey entitled or containing the words 'Conveyor Guarding Survey' undertaken in or around October 2006 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008. The report entitled or containing the words 'Inspection of Limestone Mine Guards and Conveyor systems' dated on or about 14 August 2007 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008. The subsequent report completed in or around August 2007 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008. 67The applicant's objection related to the use of the phrase "on or about" or "in or around" rendering, it was submitted, the request too vague and imprecise. Each of the items needs to be read as a whole. Each of the items is quite specific about the nature of the document being sought. The phrase "on or about" may be taken to mean "near", or "approximately" or "without significant variance from the nominated date". The phrase is commonly used in criminal charges. "In or around" has a similar meaning. When the document being sought is identified with considerable specificity and an approximate date provided, it does not seem to me there is anything vague about items 14 to 18 of the summons. 68Item 18 refers to "The subsequent report". Ordinarily that might be considered somewhat vague, but the item goes on to explain it is a report completed in or around August 2007 and specifically referred to in an Audit Protocol conducted by Henry Malkiewicz on 5 to 7 August 2008. I consider the description in item 18 to be sufficient to adequately identify what is being sought. 69Items 19 and 20 called for the production of the following documents: Minutes of the Cement Australia Pty Limited [ACN 104 053 474], SHE Compliance Committee Meeting for the period 1 March 2008 up to 20 February 2009, including copies of all reports and other documents tabled at these SHE Compliance Committee Meetings and referred to in these SHE Compliance Committee Meeting minutes. Copies of all reports and other documents tabled at the SHE Compliance Committee Meetings listed below and referred to in their Minutes: a) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 20 February 2009; b) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 21 May 2009; c) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 13 August 2009; 70The objections to items 19 and 20 appear to be that of relevance and a fishing expedition. The items seeks minutes of meetings of a committee responsible for safety compliance over a specified period and on specified dates, together with reports and other documents tabled at the meetings and referred to in the minutes. I consider there is "a reasonable basis beyond speculation that it is likely the documentation will" materially assist the respondent's case. The respondent is required to prove, inter alia, that Cement failed to provide a safe system of work and working environment. It is highly likely that the documents sought arising out of a committee responsible for safety compliance would assist. 71Item 21 called for the production of the following documents: The Minutes of the Kandos site Occupational, Health and Safety Committee (herein referred to as 'OHS Committee') meeting held on 8 January 2009 referred to in the Minutes of the earlier meeting of the same Committee on 4 December 2008 and again in the Minutes of the meeting for the same Committee held on 5 February 2009. 72In relation to item 21 I take a similar view to that expressed in relation to items 19 and 20. There is a reasonable basis to believe the minutes of the Kandos site OHS Committee would materially assist the respondent's case. Other summonses 73The view I have expressed regarding the 21 items in the Cement summons may be applied equally to the other summonses to the extent relevant. The fact that the respondent is seeking the same documents from different organisations is not a basis of itself to set aside the summonses. This is particularly so where the summonses have been served on three corporations that the respondent must prove contravened the Act in order to succeed in the prosecutions against the applicant. Costs 74Costs are reserved. ********** Attachment 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: 07 August 2012