Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Resource Pacific Pty Ltd [2013] NSWIRComm 81 Hearing dates: 18 September 2013 Decision date: 19 September 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) Resource Pacific Pty Limited is granted leave to have photocopy access to the Court's files in Matter Nos IRC 315 and 316 of 2011 provided there shall be no access to the confidential exhibits in respect of which there were claims of public interest immunity and client legal privilege and no access to material in original affidavit evidence that was filed in court that was struck out and not admitted into evidence. (2) Lawyers for Resource Pacific Pty Limited shall make arrangements with my Associate regarding a reasonable time and place to inspect the files. (3) Costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Application by defendant to access Court files in other proceedings in which the same interlocutory issue arose, namely, the validity of statutory appointments and whether there had been an abuse of process - Access granted except as to confidential material Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72 Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 Category: Interlocutory applications Parties: Resource Pacific Pty Limited (Applicant on the Notice of Motion/Defendant in substantive proceedings) Jennifer Anne Nash (Prosecutor in the substantive proceedings) Department of Trade and Investment, Regional Infrastructure and Services (Respondent on Notice of Motion) Representation: Mr D Buchanan SC with Mr M Shume of counsel (Resource Pacific Pty Ltd) (Applicant on Notice of Motion) Ms M Kumar of counsel (Department of Trade and Investment, Regional Infrastructure and Services) (Respondent on Notice of Motion) Crown Solicitors' Office (Prosecutor and Department of Trade and Investment, Regional Infrastructure and Services) Sparke Helmore Solicitors (Defendant) File Number(s): IRC 135 and 136 of 2011 INTERLOCUTORY Judgment 1This interlocutory judgment concerns an application by Resource Pacific Pty Limited ("RPPL") for access to the Court's files in Matter Nos IRC 315 and 316 of 2011. Those files concern prosecutions by Jennifer Ann Nash ("the prosecutor"), an officer of the Department of Trade and Investment, Regional Infrastructure and Services ("the Department"), of Glennies Creek Coal Management Pty Ltd (315/11) ("Glennies Creek") and Integra Coal Operations Pty Ltd (316/11) ("Integra") in respect of alleged contraventions of ss 8(1) and 8(2) respectively, of the Occupational Health and Safety Act 2000 ("OHS Act"). Background 2The Glennies Creek and Integra prosecutions have themselves been the subject of interlocutory proceedings in which the Department and the prosecutor resisted the production of documents called for by the defendants in those proceedings on grounds including client legal privilege and public interest immunity. 3The nature of the interlocutory proceedings in relation to Glennies Creek and Integra is explained in two recent judgments of the Court, namely, Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 ("Nash (No 2)") and Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72 ("Nash (No 3)"). The background to those proceedings is best summarised at [15]-[27] of Nash (No 2). [15] Before dealing with the Department's motions, some background is necessary. On 31 March 2011, Robert William Regan filed Applications for Order charging the defendants with contraventions of the Occupational Health and Safety Act 2000 ("the OHS Act"). [16] Mr Regan stated in the Application for Order and deposed in the affidavit in support that he was a government official (Chief Inspector) appointed under s 145(1)(a) of the Coal Mine Health and Safety Act 2002 ("CMHS Act") and thereby, by s 47B of the OHS Act, was taken to have been appointed as an inspector under the OHS Act and authorised by s 106(1)(c) of the OHS Act to institute the proceedings. [17] Section 145(1)(a) of the CMHS Act provides: 145 Appointment of government officials 1) The Minister may appoint a person employed under Chapter 2 of the Public Sector Employment and Management Act 2002 as: (a) the Chief Inspector, or ... [18] Section 47B of the OHS Act provided: 47B Appointment of inspectors in connection with coal workplaces A person appointed as a government official under the Coal Mine Health and safety Act 2002 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a coal workplace, but may exercise functions under Division 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under this Act in relation to a coal workplace. [19]Section 106(1)(c) of the OHS Act provided: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: ... (c) by an inspector, or ... [20] On 7 March 2012, by consent, the Applications for Order were amended to substitute Ms Nash for the former prosecutor, Mr Regan. It is to be noted that Mr Regan and Ms Nash are officers of the Department. [21]From April 2009 until the commencement of the proceedings against the defendants, another officer of the Department, Mark William Freeman, had the conduct of an investigation into the alleged breaches of the OHS Act by the defendants. [22] The defendants have raised the threshold questions of whether: (a) the proceedings against the defendants have been validly commenced by a person authorised under s 106 of the OHS Act; (b) the proceedings against the defendants are being maintained by a person validly authorised unde the OHS Act; and (c) whether any evidence relied upon by the prosecutor has been lawfully obtained by a person validly exercising powers under the OHS Act. [23] Having raised these questions, the defendants have sought, via the summonses and Notices to Produce served on the Department and the prosecutor, information regarding the appointment of Messrs Freeman and Regan and Ms Nash. It would appear the defendants' inquiries were triggered by the fact that there is a bill presently in the Parliament, the Petroleum (Onshore) Amendment Bill 2013 ("the Bill"), which purportedly seeks to validate certain appointments, including the appointment of Chief Inspector Regan, by amending the CMHS Act by inserting a new s 25A. [24] The Bill passed through the Legislative Assembly on 28 May 2013, but is only at the second reading stage in the Legislative Council. The Legislative Council next sits on 20 August 2013. The proposed amendment is in Schedule 2 of the Bill in the following terms: 25A Validation of appointment of officers (1) A person purporting to have been appointed as the Chief Inspector, an inspector, a mine safety officer or an investigator by the 2006 instrument of appointment is taken to have been validly appointed as such an officer on and from the commencement of section 145. (2) Any act purported to be done or omitted to have been done by the person as such an officer on or after that commencement is taken to have been validly done or omitted to be done, if it could have been validly done or omitted to be done had subclause (1) been in force. (3) Nothing in this clause continues the appointment of a person who, before the commencement of this clause, ceased to hold an office to which the person was appointed as referred to in subclause (1). (4) In this clause: 2006 instrument of appointment means the instrument of appointment under the Coal Mine Health and Safety Act 2002, dated 22 December 2006, published in Gazette No 5 of 12 January 2007 at page 102. [25] Reference was made in earlier interlocutory proceedings to the appointment of Chief Inspector Regan, according to the Government Gazette (of 12 January 2007), being on 22 December 2006 by Alan Coutts, Deputy Director-General, NSW Department of Primary Industries - Mineral Resources, in circumstances where, according to the defendants, the relevant provisions of the CMHS Act enabling the responsible Minister to delegate his authority to make appointments did not commence until 23 December 2006 (one day after the appointment of Chief Inspector Regan). Further, that the delegated power to appoint Mr Regan as a government official (Chief Inspector) was not granted until 28 December 2006. [26] This places a question mark over the validity of what was purported to be Mr Regan's appointment as a Chief Inspector on 22 December 2006. If that appointment was invalidly made, prima facie Mr Regan had no authority pursuant to that appointment to institute proceedings against the defendants in the Application for Order filed on 31 March 2011. [27] The defendants also contend that they require production of certain of the documents they seek to understand if the prosecutor [Ms Nash] was aware of the need to legislate to retrospectively cure an invalid appointment and did not disclose this to the defendants. If that were the case, the defendants contend a question of abuse of process arises providing grounds to permanently stay the proceedings. 4In Nash (No 2) I disallowed the Department and prosecutor's claims for public interest immunity and client legal privilege. In Nash (No 3) I declined to refer certain questions formulated by the Department and the prosecutor to the Full Bench of the Court that were said to arise out of my judgment in Nash (No 2). The application to refer the questions was made pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996. I found that the proposed questions were not question of law within the meaning of s 5AE. 5The Department and the prosecutor took the opportunity to reformulate the questions and in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 I did refer certain questions to the Full Court but not all of those that were proposed to be referred. Application for access 6By letter dated 10 September 2013, the solicitors for RPPL wrote to the Industrial Registrar (copy to the Department) seeking the leave of the Court to access the Court's files in 315/11 and 316/11. It was indicated in the letter that RPPL intended to take such steps as were necessary to put itself in the same position as Glennies Creek and Integra in relation to Nash (No 2). In that respect, it is to be noted that the original prosecutor in 135/11 and 136/11 was Robert Wlliam Regan. However, Ms Nash was substituted as prosecutor, by consent, on 7 March 2012. 7RPPL also indicated in the 10 September letter that it had issued in proceedings 135/11 and 136/11 a Summons to the Department comparable to the Summons issued to that Department in 315/11 and 316/11 subject to certain necessary slight amendments. RPPL stated in the letter that it anticipated the Department would resist the call in the Summons in a manner similar to its resistance in 315/11 and 316/11. 8The letter went on to state: (iv) The Court file in IRC 315 and 316 of 2011 should contain, in particular, the affidavit of Trent Sebbens, a Solicitor in the employ of Ashurst Australia, the Solicitors for the Defendants in those proceedings. That Affidavit contained evidence relied upon by his Honour for his decision in Nash v Glennies Creek Coal Management Pty Ltd (No 2). In particular, it is understood that the Affidavit annexes or exhibits two letters particularly relied upon by his Honour - a letter from Ashurst Australia to the Prosecutor dated 10 July 2013 and a letter in reply from the Crown Solicitor's Office, Solicitor for the Prosecutor, dated 12 July 2013; (v) It is the present intention of Resource Pacific Pty Ltd to make such application for leave as might be required to use as evidence on the anticipated motion by the Department in IRC 135 and 136 of 2011 those two letters and such parts of Mr Sebbens Affidavit as might be necessary for that purpose; (vi) In addition, once access to the affidavit is obtained, Resource Pacific Pty Ltd may seek to use other parts of Mr Sebbens' Affidavit as evidence or to inform its investigations for the purpose of evidence on the Department's anticipated Motion in IRC 135 and 135 of 2011; (vii) It is the contention for Resource Pacific Pty Ltd that there is, and can be, no privilege, immunity or other impediment to Resource Pacific Pty Ltd having access to and using as evidence in its proceedings the two letters referred to in (iv) above; (viii) Once access to the file is obtained, Resource Pacific may seek to use other documents in the file as evidence or to inform its investigations for the purpose of evidence on the Department's anticipated Motion in IRC 135 and 136 of 2011. Objection to access 9The Department, through the Crown Solicitor's Office, responded to the 10 September 2013 letter in a letter dated 13 September 2013 indicating it objected to access to the Court files in 315/11 and 316/11. The reasons for doing so were expressed as follows: 1. The application for access appears to be for access to the court file generally (see paragraph (viii) of the letter from Sparke Helmore Lawyers to the Court dated 10 September 2013). Access to the court file is not appropriate as there are confidential exhibits on the court file. The confidential exhibits were tendered only to be viewed by the President. 2. The court file should not be accessed as there is material in original affidavit evidence that was filed in Court that was struck out and not admitted into evidence. 3. Access to the court file is not appropriate as the proceedings concern client legal privilege and public interest immunity claims (see by way of analogy Supreme Court Practice Note SC Gen 2 at point 10). 4. In so far as the Resource Pacific Pty Ltd ("Resource Pacific"), the defendants in these proceedings seek to access, in particular, the affidavit of Trent Sebbens, a solicitor in the employ of Ashurst Australia, solicitor for the defendants in the Glennies Creek/Integra proceedings, the Department opposes access being granted, in particular, to the letter exhibited to Mr Sebbben's affidavit comprising a letter from the Crown Solicitor, solicitor for the Prosecutor to Ashurst Australia dated 12 July 2013. In Glennies Creek Coal Management Pty Ltd (No. 2) [2013] NSWIR Comm 67 his Honour Justice Boland found waiver of client legal privilege occurred as a result of the 12 July 2013 letter (the Department's position is that the letter did not waive privilege). The 12 July 2013 letter is not written to Resource Pacific and is limited to the Glennies Creek proceedings. Therefore, there is no utility in Resource Pacific having access to the letter for these proceedings. 5. Access to the file is not appropriate in circumstances where the decision of Justice Boland as referred to in paragraph 4 above, is the subject of an application for referral of a stated case to the Full Bench. Access should not be considered prior to the conclusion of proceedings IRC 315 and 316 of 2011 in respect of the summons issued on the Department. 6. It should be noted that the Department intends to object to the tender and use of the 12 July 2013 letter (assuming Resource Pacific obtain leave to access the letter) as evidence in proceedings IRC 135 and 136 of 2011. The Department foreshadows objections pursuant, but not limited to, ss 55, 56, 59, 76 and 135 of the Evidence Act 1995. The Department may also object to the admissibility of other evidence accessed from the court file in IRC 315 and 316 of 2011. 7. Finally, Resource Pacific has not stated how the court file is required for the determination of its own summons for production. My client is uncertain as to the basis upon which access is sought. Department's Notice of Motion 10In proceedings on Monday 16 September 2013 the Department was given leave to file in Court a notice of motion seeking: ... 2. That compliance with the Summons issued on the Department of Trade and Investment, Regional Infrastructure and Services ("The Department") on 10 September 2013 and orders 3-5 of this motion, be adjourned until such time as proceedings in respect of the motions filed on behalf of the Department... in respect of a Summons for Production issued on behalf of the Defendants on 10 July 2013 in proceedings No IRC 315 and 316 of 2011 ("the Glennies Creek/Integra motion") are finalised. 3. That the Summons issued on the Department on 10 September 2013 be set aside in whole or in part as an abuse of process on the ground that it has no legitimate forensic purpose. 4. In the alternative to order 3, that the Department be excused from producing any document or thing that is properly the subject of a claim for public interest immunity and/or client legal privilege. ... RPPL's response to objections to access 11The question of access to the Court's files in 315/11 and 316/11 was listed for argument on 18 September 2013. In dealing with each of the Department's reasons for opposing access, as set out in the Crown Solicitor's letter of 13 September, senior counsel for RPPL submitted in response to the numbered paragraphs in the Crown Solicitor's letter: 1. RPPL did not seek access to exhibits made confidential by an order of the Court. 2. RPPL did not seek access to original affidavit evidence that was filed in court that was struck out and not admitted into evidence. 3. (a) Supreme Court Rules Practice Note Gen 2 at point 10 is plainly concerned with applications made for purposes other than exactly the same dispute involving claims of client legal privilege and public interest immunity made by the same party (in this case, the Department) in respect of exactly the same documents in both sets of proceedings. (b) In any event, Supreme Court Rules Practice Note Gen 2 contemplates that there will be circumstances where leave to access will be granted where such claims are being made in the proceedings in respect of which access to the court file is being sought. (c) The mere fact that the Glennies Creek/Integra proceedings concern client legal privilege and public interest immunity claims is not a sufficient reason to deny access to the non-confidential parts of the Glennies Creek/Integra court files. In this case neither the purpose of the application for access, nor its effect, is to infringe any client legal privilege or public immunity attaching to documents in the court files. 4. (a) From the judgment in Nash (No 2) it is understood that there is nothing in the Crown Solicitor's 12 July 2013 letter: restricting its use, "limiting it to the Glennies Creek proceedings", or rendering it confidential to the defendants in IRC 315 and 316 of 2011. (b) There is no principle of law that prevents correspondence between parties to one set of litigation being made available to parties in other litigation. (c) The 12 July 2013 letter was not sent to Ashurst under compulsion of law, and the contents of the 12 July 2013 letter were not disclosed to Ashurst or its clients under compulsion of law. (d) It was conceded by the Department on 16 September 2013 that the Sebbens' affidavit is now on the public record. (e) The fact that the correspondence was admitted into evidence makes the letters (and Mr Sebbens' affidavit) 'normally' accessible by a non-party with leave (cf Supreme Court Rules Practice Note Gen 2, par 7). (f) There is no claim of and can be no legal professional privilege in correspondence sent by one party to litigation to an opposing party. (g) There is no claim of public interest immunity in respect of the correspondence. (h) The utility in RPPL having access to the 10 and 12 July 2013 letters is that in Nash (No 2) the Court found that, in the context of the 10 July letter, by her solicitor's letter dated 12 July 2013 the Prosecutor waived client legal privilege over the communications disclosed in that letter. Those communications are communications sought by RPPL's summons to produce - in respect of which it is envisaged the Department claims client legal privilege. The letter is therefore critical to the resolution of the dispute between RPPL and the Department about production and inspection of documents under RPPL's summons to produce. 5 (a) RPPL's application for access is amended to exclude documents the subject of disputed claims for privilege or immunity. (b) RPPL has sought an undertaking from the Department that if its objections to production and inspection are adjourned pending the outcome of any stated case or appeal from Nash (No 2) the Department will treat the outcome of any such stated case or appeal as governing the outcome of its objections to production and inspection of the same documents sought by RPPL's summons. The Department has rejected that proposal. If, in respect of its objections to production and inspection which it makes in response to RPPL's summons for production, the Department is not prepared to abide the outcome of the Glennies Creek/Integra decision in respect of the same claims made in respect of the same documents, there is no reason why the Department's motion to set aside RPPL's summons to produce should not proceed to hearing. In that event, there is no reason why RPPL should be shut out of investigating and obtaining evidence for the hearing of that motion to set aside. 6. The fact that the Department may have objections to the use by RPPL of the 12 July 2013 letter by RPPL is no reason for RPPL to be denied access to it (and the whole of Mr Sebbens' affidavit) for the purpose of preparing its case and tendering it. 7. (a) The Prosecutor in the proceedings against Glennies Creek/Integra and the proceedings against RPPL is the same. RPPL is investigating and preparing evidence relating to its contentions that - the proceedings against it were commenced without proper authority; prosecution evidence was obtained improperly and/or without lawful authority; that the Prosecutor has failed to comply with her obligations of disclosure. (b) RPPL has served a summons to produce on the Department in terms which are practically identical to the first summons from Glennies Creek/Integra served on the Department which was the subject of the Court's judgment in Nash (No 2). (c) On 16 September 2013, the Department filed a notice of motion for orders, amongst other things, setting aside RPPL's summons. The grounds and reasons given for the orders sought are - The summons lacks a legitimate forensic purpose; The summons is a fishing expedition; The summons seeks the production of documents that are the subject of an unresolved claim of public interest immunity and legal professional privilege in other proceedings; The documents caught by the summons could be the subject of a claim of public interest immunity and/or client legal privilege pursuant to ss 118, 119, 130 and 131A Evidence Act 1995. (d) From the decision in Nash (No 2), it appears these grounds and reasons overlap the Department's grounds and reasons in its notice of motion to set aside the first Glennies Creek/Integra summons. (e)That latter notice of motion was dismissed in Nash (No 2) and orders for production and inspection were made. (f) In investigating and preparing evidence both for its contentions that the proceedings against it were commenced without proper authority and that the Prosecutor has failed to comply with her obligations of disclosure, RPPL wishes to have access to and, if considered appropriate, to use as evidence relevant material contained in the court file in the proceedings between DTI and Glennies Creek/Integra. (g) In particular, RPPL wishes to have access to the affidavit of Trent Sebbens, filed for Glennies Creek/Integra, including its annexures and exhibits (if any). From references to the affidavit in the judgment in Nash (No 2), it is understood that it contains material which was, in part, relied upon for the decision in Nash (No 2). (h) In particular, it is understood that Mr Sebbens' affidavit annexes or exhibits two letters. The first is dated 10 July 2013 and is from Ashurst Australia, the solicitors for Glennies Creek/Integra, to the Prosecutor in those matters. The other is dated 12 July 2013 from the Crown Solicitor's Office, solicitors for the Prosecutor, to Ashurst Australia. The letter of 12 July 2013 is critical to part of the decision made in Nash (No 2). RPPL seeks to use both letters as evidence in its case on the Department's notice of motion to set aside its (RPPL's) summons to produce. Position of Department and Prosecutor 12In the proceedings on 18 September, counsel for the Department indicated that whether access should be granted was a matter for the Court. The prosecutor took the same position. Consideration 13I am satisfied for all the reasons submitted by RPPL that I should grant leave to allow RPPL access to the Court's files in Matter Nos 315 and 316 of 2011 provided there shall be no access to the confidential exhibits in respect of which there were claims of public interest immunity and client legal privilege and no access to material in original affidavit evidence that was filed in court that was struck out and not admitted into evidence. There is nothing useful or relevant I can add to the submissions as to why access should be granted. Orders 14The Court makes the following orders: (1) Resource Pacific Pty Limited is granted leave to have photocopy access to the Court's files in Matter Nos IRC 315 and 316 of 2011 provided there shall be no access to the confidential exhibits in respect of which there were claims of public interest immunity and client legal privilege and no access to material in original affidavit evidence that was filed in court that was struck out and not admitted into evidence. (2) Lawyers for Resource Pacific Pty Limited shall make arrangements with my Associate regarding a reasonable time and place to inspect the files. (3) Costs are reserved. ********** 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: 19 September 2013