Land and Environment Court New South Wales Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 Hearing dates: 10 March 2014 Decision date: 10 March 2014 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [40]. Catchwords: PROCEDURE - application to set aside subpoena - fishing expedition - no legitimate forensic purpose in seeking production - production sought for the sole purpose of attacking credibility of a witness- subpoenas set aside in part. Legislation Cited: Environmental Planning and Assessment Act 1979, s 76A Evidence Act 1995, ss 102, 103 Uniform Civil Procedure Rules 2005, r 33.4 Wingecarribee Local Environmental Plan 2010, cl 7.3 Cases Cited: Adam v R [2001] HCA 57; (2001) 207 CLR 96 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Azar Building Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Azzi v Volvo [2006] NSWSC 283 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2012] NSWLEC 66 R v El-Azzi [2004] NSWCCA 455 R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314 Young v King (No 3) [2012] NSWLEC 42 Category: Interlocutory applications Parties: Wingecarribee Shire Council (Prosecutor) Mr Paul O'Shanassy (Defendant) Representation: Mr T Howard SC (Prosecutor) Mr P O'Shanassy (in person) (Defendant) Shaw Reynolds Bowen & Gerathy Pty Ltd (Prosecutor) Mr P O'Shanassy (in person) (Defendant) File Number(s): 51130 of 2012 EX TEMPORE Judgment The Council Seeks to Set Aside Parts of Subpoenas 1This is an application by way of notice of motion filed on 10 March 2014 by the prosecutor, Wingecarribee Shire Council ("the council"), to set aside paragraphs of two subpoenas to produce documents issued by the defendant, Mr Paul O'Shanassy, on 5 March 2014, to: (a)the Commissioner of the New South Wales Police ("the Police"); and (b)the proper officer of Telstra Corporation Limited ("Telstra"). 2The impugned parts of each subpoena should be set aside insofar as they do not serve any legitimate forensic purpose but instead amount to a fishing expedition by Mr O'Shanassy in order to obtain material solely for the purpose of attacking the credibility of witnesses for the council in contravention of the credibility rule. Mr O'Shanassy is Charged With Having Carried Out Unlawful Development 3In order to ascertain whether or not there is any legitimate forensic purpose to the documents Mr O'Shanassy seeks, it is first necessary to recite some of the background to the proceedings. 4In short, Mr O'Shanassy has been charged with having carried out excavation works on his property without development consent, in contravention of s 76A of the Environmental Planning and Assessment Act 1979 ("the EPAA") and cl 7.3 of the Wingecarribee Local Environmental Plan 2010 ("the LEP"). 5A development consent was granted by the council to Mr O'Shanassy in 2001 in relation to the original construction of his house on Lot 11 DP 1010798 ("the land"), subject to conditions, viz, that natural ground levels not be altered, that the ridgeline of the highest point of the roof not exceed 105.5 metres, and that no trees be lopped, removed, damaged or destroyed without council consent. Mr O'Shanassy carried out the construction of his house during 2002-2003. 6However, it is alleged by the council that Mr O'Shanassy began new and unauthorised development works in June 2011, namely, large-scale earthworks that involved the excavation and filling of clay and rock having a volume estimated to exceed 16,000m³, as well as the removal of several large eucalyptus trees. The council alleged that these excavation works removed a ridgeline adjacent to the house located on the land for the purposes of allowing room for a significant extension to the house and to provide uninterrupted views to Sydney. It further alleged that earthworks were carried out on the three parcels of land adjoining the land, namely, Lot 12 DP 1010798, Lot 1 DP 878237 and Lot 4 DP 878237. 7In October 2011, Mr Joe Lorincz, a neighbour of Mr O'Shanassy, notified the council of the development being carried out by Mr O'Shanassy, in part on Mr Lorincz's property. This resulted in a council town planner, Mr Shannon Webb, attending the land and informing Mr O'Shanassy of Mr Lorincz's complaint. As a result, Mr O'Shanassy submitted to the council a surveying report, together with an application to carry out interim works to address the environmental damage caused by the development. The application was granted by the council in December 2011. 8It appears to be Mr O'Shanassy's defence to the charge that, either the allegedly unlawful works were carried out earlier, outside the charge period, or that the works comprised the interim works carried out with the permission of the council. 9Mr O'Shanassy has issued the two subpoenas referred to above to seek documents that will enable him to attack the credibility of Mr Lorincz and other council witnesses in cross examination. Legal Principles Applicable to the Setting Aside of Subpoenas 10Rule 33.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") provides that the Court may, on the application of a party, set aside a subpoena in whole or in part, or grant other relief in respect of it. 11A subpoena must be framed in terms that enable it to be positively established that a legitimate forensic purpose is served by the issuing of the subpoena (Commissioner for Railways v Small (1938) 38 SR (NSW) 564; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 and Azar Building Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20]). Whether such a purpose is met in any particular case turns upon the connection that the issues raised in the proceedings have with the documents the subject of the subpoena or notice to produce (Azar at [20]). 12In Azar, Craig J helpfully described some of the circumstances in which a subpoena or a notice to produce, which is relevantly subject to the same principles (Azzi v Volvo [2006] NSWSC 283 at [4]), will be liable to be set aside on the basis that no legitimate forensic purpose can be established (at [20]-[21]): 20 ...Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish: (i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69]; (ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432; (iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4]; (iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. 21 The principle was extensively discussed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd . Tobias JA (in whose judgment Basten JA and Handley AJA agreed) considered at [22] the requirement for it to be shown that it is "likely" that the documentation sought will materially assist on an identified issue or the alternative requirement that there be a reasonable basis beyond speculation that it is likely the documentation will so assist was not relevantly different to a requirement that it be "on the cards" that the documents would materially assist on an identified issue. Importantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought. 13More recently, in Young v King (No 3) [2012] NSWLEC 42, Sheahan J comprehensively analysed the authorities in relation to the setting aside of notices to produce and subpoenas on the grounds of relevance (at [55]-[97]). In particular, his Honour cited the following authorities whose principles I respectfully endorse (at [56]-[63]): 56 The classic statement of the test is generally said to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors ("Arnotts") (1989) 88 ALR 90; (1989) 21 FCR 306, at 103 of the ALR report. According to Arnotts , the correct questions for the court are (emphasis added): "Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? ... Is the subpoena seriously and unfairly burdensome or prejudicial ? ... The test of adjectival relevance is satisfied if the material has apparent relevance." 57 His Honour concluded (also at 103, with emphasis again added) that the test was satisfied in that case because the documents sought "could possibly throw light on the issues in the main case". 58 The use of the word "possibly" in His Honour's finding has been said, by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation ("Cosco") (1997) 37 ATR 43 at 439, to mean that: "The material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. (emphasis mine)." 59 Brereton J noted in Portal Software International Pty Ltd v Bodsworth ("Portal") [2005] NSWSC 1115, at [22], that it had become clear by that time that absence of apparent relevance is a sufficient ground to set aside a subpoena or a NTP. Where it is asserted that there is an abuse of process, "some onus would lie on the person contending that ... to make that allegation good" (at [28]), but where the question of relevance is raised it must be shown by the party issuing the notice rather than refuted by the producer (at [29]). 60 In ICAP Pty Ltd & Ors v Moebes & Anor ("ICAP") [2009] NSWSC 306, Nicholas J agreed with the construction adopted in Cosco, and in an unreported judgment in McLaughlin v Dungowan Manly Pty Ltd ("McLaughlin" - NSWSC 4924/06) on 14 July 2009, Ward J agreed with Nicholas J. 61 Ward J also noted (at [28] of McLaughlin) that Nicholas J had expressed caution in ICAP about application of a test of "legitimate forensic purpose" which incorporates phrases like "on the cards" or "could possibly throw light on", but that Beazley JA (in Attorney-General (NSW) v Chidgey ("Chidgey") [2008] NSWCCA 65; (2008) 182 A Crim R 536) had found no reason to depart from the test or from the language adopted by Gibbs CJ in Alister v R ("Alister") (1984) 154 CLR 404. I will return to Alister and Chidgey. (See below, at [71] and [85] respectively). 62 Ward J noted (at [32]) that Nicholas J had stated the test (in [30]), in civil proceedings, in terms that (emphasis added): "It 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 that the documentation will." 63 Her Honour then observed (at [33]): "That requires a consideration of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena." 14More recently still, the Court in Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2012] NSWLEC 66 summarised these principles in the following way (at [53]): In summary, it must be demonstrated that it is likely that the legal advices sought by the subpoenas will materially assist on an identified issue in the proceedings, or that there is a reasonable basis beyond speculation that the documents will assist. 15And in Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114 Craig J repeated this summary (at [10]): The parties are not in dispute as to the relevant principle to be applied. They both accept that a document will have a legitimate forensic purpose if it is likely that the document or documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will materially assist on such an issue (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307; Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20]). 16Most recently these principles were cited and applied in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (at [33] -[38]). 17In summary, therefore, the question for determination is whether the documents sought in the subpoenas materially assists on an identified issue in the criminal proceedings, or whether there is a reasonable basis beyond speculation that the documents will assist? In my opinion, the question is to be answered in the negative in respect of each subpoena. The Credibility Rule 18At this juncture is it convenient to set out the salient aspects of the so-called 'credibility rule'. Section 102 of the Evidence Act 1995 provides that evidence may not be adduced that is relevant only to the credibility of a witness. Therefore, if documents are sought to be adduced solely for the purpose of bolstering or attacking the credibility of a witness, this material is generally inadmissible (Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 at [39]). 19The authorities make it clear that a distinction should be made between evidence that goes only to the credibility of the witness in general, and evidence that is adduced for the purpose of discrediting the evidence that witness has given. The credibility rule does not exclude the second category of evidence (Peacock at [39], [57]). 20Similarly, the credibility rule will not apply where the evidence may be relevant for proof of a fact in issue, or for some other purpose (R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 at [333]; Adam v R [2001] HCA 57; (2001) 207 CLR 96 at [35]). That is, the "criterion of operation of s 102 is the relevance of the evidence" (Adam at [35]). 21Section 103 of the Evidence Act provides an exception to the credibility rule. Under s 103(1), evidence adduced from a witness in cross-examination that could substantially affect the assessment of the credibility of that witness is admissible. In deciding whether a piece of evidence falls within the exception provided for in s 103(1), the Court should have regard to whether the evidence suggests that the witness knowingly or recklessly made a misrepresentation while under oath, and the period that has elapsed since the relevant event occurred (s 103(2)). 22For evidence to "substantially affect" the assessment of a witness's credibility pursuant to s 103, the potential effects must be "real" or "significant", particularly in relation to the evidence he or she has given or will give at the trial (R v El-Azzi [2004] NSWCCA 455 at [183]). That is to say, the evidence must be sought in order to establish whether the witness is to be believed on oath, rather than whether he or she is generally a discreditable person (R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314 at [31]-[36]). Subpoena to the Police 23The council seeks to set aside paragraph three of the subpoena to the Police which read as follows: All files, statements, documents (including copies of documents), notes, records of interviews, COPS printouts, charge sheets, occurrence paid entries, occurrence summaries, correspondence, court outcomes and writings held by you in relation to Joseph Leslie Lorincz (date of birth: 24/03/1956) of address lot 4, DP 878237, being number 30 Nannas Lane, Mittagong, New South Wales, 2575, but not limited to this address, for the period 24/03/1956 to date. 24Mr O'Shanassy asserted that the documents in paragraph three were required for two reasons. First, he claimed the documents would shed light on a claim made by him that Mr Lorincz had trespassed on his land and attempted to stop a contractor from carrying out the works the subject of these proceedings. During the course of the trespass an altercation took place wherein the police were called and an incident report was generated. Second, Mr O'Shanassy sought the documents in order to see if "any other incidents of a similar nature" had occurred during the charge period. Subpoena to Telstra 25The council also seeks to set aside paragraph two of the subpoena to produce issued to Telstra. Paragraph two of the subpoena sought the following (with the telephone numbers partially omitted for privacy reasons): A copy of all documents recording all telephone calls made and SMS/text messages sent from the following telephone numbers: (a) [XXXX XXX] 296 for the period 1 June 2011 to date; (b) [XXXX XXX] 793 for the period 1 May 2012 to 1 January 2013; (c) [XX XXXX] 1885 for the period 1 October 2011 to date; (d) [XXXX XXX] 380 for the period 1 May 2012 to date; (e) [XX XXXX] 2430 for the period 1 March 2011 to date; (f) [XXXX XXX] 583 for the period 1 March 2011 to 1 October 2013. 26Mr O'Shanassy provided the Court with the following information in relation to the phone numbers, with which the council did not take issue: (a)that the telephone number in sub-para (a) of the subpoena belonged to Mr Lorincz; (b)that the telephone number in sub-para (b) belonged to that of Mr Lorincz's wife, Ms Wendy Lorinz. She was not a witness to be called in the proceedings; (c)that the telephone number in sub-para (c) was the home fixed line telephone number for Mr and Mrs Lorincz; (d)that the telephone number in sub-para (d) belonged to Ms Lana Lake, a witness in the proceedings attending by way of compulsion pursuant to a subpoena to appear issued by the council. Ms Lake is the estranged wife of Mr O'Shanassy; and (e)that the telephone numbers in sub-paras (e) and (f) belonged to Mr Bill Symonds, an excavator/operator who is to be a witness called on behalf of the council. 27Mr O'Shanassy submitted that the documents were required because they would assist in demonstrating that Mr Lorincz had been "coercing", or, at the very least, seeking to improperly influence the evidence to be given by other witnesses in the proceedings in order to facilitate a potential damages claim against Mr O'Shanassy for harm to Mr Lorincz's property caused by development the subject of the charge. 28In support of the documents sought in paragraph two of the subpoena to Telstra, Mr O'Shanassy relied on: (a)a letter from Mrs Lorincz dated 5 July 2013, attaching incomplete documents in response to an earlier subpoena issued to Mr Lorincz by Mr O'Shanassy's previous solicitors on 21 May 2013, asking for fixed and mobile telephone bills from the period 1 March 2011 to date, including but not limited to, phone calls to Mr Shane White; (b)emails passing between Mr Lorincz and Mr Peter Mitchell, the former Planning Department Development Control leader at the council, that referred to Mr Bill "Symons" [sic] and Mr Symonds' company, Southern Plant Hire, which showed a telephone number consistent with that of Mr Symonds' telephone number; (c)text messages from a phone number purportedly belonging to Mrs Lorincz, of which one, between herself and Ms Lake, dated 23 July 2013 at 11.07, stated: Hi Wendy. I came across a boarding pass of Paul's from 20 July when I was at the house last. Seems he went to Melbourne. Anyway, handwritten on the back by Paul is "Griffith Tree Service". I can't say if they're the ones that cut the trees down or if they only trucked them away given it's so recent, but am looking through accounts to see who was paid. Lana. x (d)text messages purportedly between Mr Lorincz and Ms Lake, one of which was dated 7 November 2012, and stated: Hi Joe, I'm ok. Plenty of surprises still, however in my favour - we have beefed up the fight...the trees were cut down by Above All Arbor. Any news from council? Looking forward to coffee. Lana 29Mr O'Shanassy particularly drew to the attention of the Court the text messages, asserting that they demonstrated that there was collusion between these individuals, and moreover, that information was being passed to the council by one or more of these persons, in order to assist the council in its investigations with respect to the charge. 30Finally, Mr O'Shanassy relied upon Mr Lorincz's inability to produce text messages and letters sought in the earlier issued subpoena referred to above, suggesting that Mr Lorincz had deliberately failed to produce these documents because the documents "painted him in a different picture." Mr O'Shanassy therefore submitted that the subpoena to Telstra would provide him with the missing text messages from Mr Lorincz. The Impugned Parts of the Subpoenas Must be Set Aside 31The purposes articulated by Mr O'Shanassy for production of the documents in paragraph three of the subpoena to the Police and paragraph two of the subpoena to Telstra, do not, in my opinion, give rise to a legitimate forensic purpose for seeking those documents, and as a consequence, they should be set aside. Subpoena to the Police 32In relation to the subpoena to the Police, Mr O'Shanassy was unable to articulate any direct or indirect connection between the issues raised for determination in the proceedings, that is, whether there had been a breach of s 76A of the EPAA, and the production of documents relating to Mr Lorincz's previous dealings, if any, with the Police. 33In other words, it was at no stage demonstrated that these documents were likely to materially assist the Court, or shed light upon, the issues for determination in the proceedings. For example, it was not asserted by Mr O'Shanassy that Mr Lorincz was likely to give false evidence or had given false evidence in the two affidavits that he had affirmed in the proceedings on 11 September 2012 and 13 September 2013. Rather, the production of these documents amounted to a fishing expedition in order to obtain material with which to attack the credibility of Mr Lorincz. It may be noted, for example, that in this regard Mr O'Shanassy sought production of documents unconfined in subject matter and date range. 34The only reason for seeking the documents is to attack, without any basis for doing so, the credibility of Mr Lorincz in a manner contrary to s 102 of the Evidence Act. Furthermore, Mr O'Shanassy has not satisfied the Court that the exception contained in s 103 of the Evidence Act is applicable. Subpoena to Telstra 35In relation to the subpoena to Telstra, Mr O'Shanassy was similarly unable, in my view, to demonstrate a legitimate forensic purpose for the production of this potentially voluminous (given the breadth of paragraph two) material. 36First, the material did not demonstrate collusion between various of the council's witnesses, or that information was being impermissibly provided by these individuals to the council to assist it in its investigations. Second, nor did it reveal any coercion or improper influence being brought to bear by Mr Lorincz, or anyone else having a connection with the proceedings, on any potential witness, nor was the material suggestive of any improper collusion between witnesses. Accordingly, other than Mr O'Shanassy's bold assertions, there was nothing to suggest that his claims had any basis to them, and furthermore, it could not be said that the material that Mr O'Shanassy sought by paragraph two of the subpoena to Telstra was in any way directly or indirectly relevant to the issues to be decided in the proceedings. 37Instead, paragraph two of the subpoena to Telstra amounted to no more than a fishing expedition by Mr O'Shanassy in the hope of eliciting information that was to be used solely for the purpose of attacking the credit of witnesses appearing for the council, in particular, Mr Lorincz, Ms Lake and Mr Symonds. For the reasons given above, this purpose is not, when regard is had to ss 102 and 103 of the Evidence Act, a legitimate forensic purpose that would warrant the production of the documents. 38Similarly, to the extent that Mr O'Shanassy relied on the fact that there was, according to him, inadequate production by Mr Lorincz of material in answer to the subpoena dated 21 May 2013, Mr O'Shanassy does not appear to have contemplated the possibility that these documents were not in Mr Lorincz's control. The subpoena issued on 21 May 2013 was, it should be observed, in more confined terms than that of the subpoena to Telstra. In any event, even if the allegation that Mr O'Shanassy makes is accurate, this, of itself, would not provide a sufficient basis for seeking the material in paragraph two of the subpoena to Telstra. 39There having been no legitimate forensic purpose demonstrated by Mr O'Shanassy for seeking the documents in paragraphs three and two of the subpoenas to the Police and Telstra respectively, these paragraphs must be set aside. Orders 40The orders of the Court are therefore that: (1)paragraph three of the subpoena to the Police is set aside; (2)paragraph two of the subpoena to Telstra is set aside; and (3)the exhibits are to be returned. ********** Amendments 17 April 2014 - Title amended to reflect this is the second judgment made in this matter. Amended paragraphs: Case Title 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: 17 April 2014