Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67

Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 Hearing dates: 24, 25, 26 July, 7 August 2013 Decision date: 13 August 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The Second Summons and the First and Third Notices to Produce are set aside. (2) The claims by the Department of public interest immunity and client legal privilege are disallowed in respect of any statement made in Confidential exhibits MP-A to MP-D inclusive and any statement or statements made in a document referred to in JMM-1 directed to: (a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102; (b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A. (3) In respect of the documents in MP-A, MP-B, MP-C and MP-D and the documents referred to in JMM-1, the Department shall prepare a schedule or table, in date order, identifying the following: (a) where the document contains a statement or statements referred to in Order (1) hereof: (i) the nature of the document (for example, "Ministerial Letter for Minister" or email) , the author/s of the document and his or her position, to whom the document is directed, and the date of the document; and (ii) an extract of the whole of the statement or statements (including relevant headings). (4) In the alternative or in addition to Order (2) hereof, the whole of the documents may be produced in redacted form if redaction is necessary. (5) Where a document in MP-A to MP-D inclusive and a document referred to in JMM-1 contains a statement or statements referred to in Order (1) hereof and the statement is merely a reiteration of what is said in an earlier document of the same nature, there is no need to comply with Orders (2) and (3) hereof in relation to that document. Where there is any change in the wording from a previous document of the same nature, Orders (2) and (3) shall be complied with. (6) To avoid doubt, where the document contains a draft of schedule 2.1 or drafts of explanatory memoranda directly referring to schedule 2.1, it is unnecessary to provide other drafts that are in the same terms. Further, other than statements referred to in Order (1), it is not the Court's intention that any subject- matter related directly or indirectly to the Petroleum (Onshore) Amendment Bill 2013 be disclosed. (7) The Department shall, on or before 4.00pm Thursday 15 August 2013, produce the schedule or table referred to in Order (2) and/or the documents referred to in Order (3) hereof for inspection by the defendants. (8) The Department shall pay the defendants' costs of the motions in respect of public interest immunity and client legal privilege. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under Occupational Health and Safety Act 2000 - Interlocutory proceedings - Summonses to Produce - Notices to Produce - Challenge to authority of prosecutor to institute and maintain prosecutions - Abuse of process - Legitimate forensic purpose - Public interest immunity - Client legal privilege Legislation Cited: Coal Mine Health and Safety Act 2002 Criminal Procedure Act 1986 Evidence Act 1995 Occupational Health and Safety Act 2000 Petroleum (Onshore) Act 1991 Petroleum (Onshore) Amendment Bill 2013 Cases Cited: Adelaide Steamship Co Ltd v Spalvins (1998) 88 FCR 360 Alderman v Zurich [2011] NSWSC 754 Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15; (1996) 137 ALR 28 Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 Australian National Airlines Commission v The Commonwealth [1993] HCA 33; (1975) 132 CLR 582 Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 641 Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 College of Law Limited v Australian National University [2013] FCA 492 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 Conway v Rimmer [1968] AC 910 Commonwealth v Vance [2005] ACTCA 35; (2005) ACTR 47 Cooper v Hobbs [2013] NSWCA 70 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 d'Apice v Gutkovich (No.1) [2010] NSWSC 1336 Egan v Chadwick (1999) 46 NSWLR 563 General Manager, WorkCover Authority (NSW) v Law Society (NSW) [2006] NSWCA 84;(2006) 65 NSWLR 502 Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83 Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58 Inspector Estriech v Leon [2012] NSWIRComm 84 Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 Lanyon Pty Ltd v The Commonwealth [1974] HCA 11; (1974) 129 CLR 650 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 New South Wales v Ryan (1998) 101 LGERA 246 Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director General, Department of Premier and Cabinet [2010] NSWIRComm 21 Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 628 Rich v Harrington [2007] FCA 1987 Rogers v Home Secretary [1973] AC 388 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Seven Network Ltd v News Ltd [2005] FCA 142 Singtel Optus Pty Limited v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 Spencer v Commonwealth of Australia [2012] FCAFC 169 Sportsbet Pty Limited v State of New SouthWales (No 3) [2009] FCA 1283 State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 5 Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 Young v Quin (1985) 4 FCR 483 Category: Interlocutory applications Parties: Department of Trade and Investment, Regional Infrastructure and Services (Applicant on the Notice of Motion) Jennifer Anne Nash (Prosecutor in the substantive proceedings) Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents on the Notice of Motion/Defendants in the substantive proceedings) Representation: Ms M Kumar of counsel (Department of Trade and Investment, Regional Infrastructure and Services - Applicant on the Notice of Motion) Mr J Agius, Senior Counsel with Mr C Magee of counsel (Prosecutor) Mr A Moses, Senior Counsel (Respondents on the Notice of Motion) I V Knight, Crown Solicitors (Applicant on the Notices of Motion) Ashurst Australia (For the First and Second Respondents on the Notices of Motion) File Number(s): IRC 315 and 316 of 2011