Bailey v Director-General, Department of Natural Resources

Supreme Court of NSW|2013-05-17|Before: Garling J, Mr P

Judgment 1By a Notice of Motion filed on 13 August 2012, the plaintiffs, Bruce Clyde Bailey and Janet Shafik-Bailey moved the Court for the following orders: "1. Order that pursuant to the Civil Procedure Act s 61(2)(a) and 3(e) and/or Evidence Act 1995, s 192A(a), the Court rejects the evidence the Defendants seek to adduce from Robert Patrick Smith in paragraphs 5, 6 and 13 of his affidavit sworn 18/5/11. 2. Alternatively to (1), Order that pursuant to Civil Procedure Act s 70(1)(c) the first and third defendants make admissions with respect to a question of fact, namely, that Robert Patrick Smith, the prosecutor in Land and Environment Court of NSW Class 5 proceedings No.50073 and 50074 of 2002, did not have regard to legal advice in making his decision to prosecute the first-named plaintiff made on 1 July 2002. 3. Order that the first and third defendants give discovery of all legal advice received by the prosecutor prior to the commencement of LEC Class 5 proceedings No.50073 and No.50074 of 2002." 2The first and third defendants, namely the Director-General, Department of Natural Resources NSW and the State of NSW, oppose the orders which are sought. 3The Notice of Motion also sought other orders. Judgment in respect of those orders was delivered at the time of the hearing of this motion. They are no longer relevant. 4For the reasons which follow, I do not propose to make the orders sought as set out in [1], and will make formal orders dismissing the balance of the motion.

Previous judgments 21There have been earlier interlocutory proceedings between the parties dealing with a question of discovery and a question of whether a claim for client legal privilege made by the defendants ought be upheld. 22Those issues were first dealt with by James J who, in a judgment delivered on 22 May 2008, upheld the defendant's claim for privilege with respect to all documents except specific identified documents. The judgment of James J is unreported. 23The plaintiffs sought leave to appeal against that judgment. The outcome of that appeal is contained in Bailey v Department of Land and Water Conservation [2009] NSWCA 100. Although the Court of Appeal granted the plaintiffs leave to appeal, the appeal was dismissed. 24In the course of his judgment (with which Allsop P and Hodgson JA agreed) Tobias JA said this: "52 From the organisational structure of the Department annexed to the affidavit of Mr Phelps, it is apparent that all divisions within the Department such as, for instance, Legal and Compliance, are responsible through the Deputy Director-General to the Director-General as head of the Department. In the present case, the Director-General was the prosecutor and it was ultimately his decision whether or not to prosecute. In so doing he no doubt relied upon recommendations made to him by the appropriate officers within his Department. As Director-General, he was ultimately responsible for the functions and operations of the Department including the taking of such steps as were necessary in order to bring to fruition the recommendation as to whether Mr Bailey should be prosecuted for breach of the NVC Act, being legislation the administration of which he, as head of the Department, was responsible: see, eg, ss 15(3), 29, 31, 37, 40, 42(2)(d), 46, 47, 50, 56, 60 and 66. With due respect to the appellants' submissions, it defies common sense to suggest that the legal or other officers within the Department were providing or receiving legal advice otherwise than as the agents of the Director-General for the purpose of providing him with such information as was appropriate to enable him to ultimately determine whether or not to proceed to prosecute." 25As is apparent, included in the documents, the subject of the claim for privilege, were such legal advices, memoranda or notes as were prepared by legal officers of the Department and placed before the Director-General for the purpose of his making a decision about whether to prosecute or note. 26At [77] Tobias JA, upon the basis that the Director-General was the prosecutor of the first plaintiff in the Land and Environment Court, and that he was the relevant person who was responsible and accountable for such prosecution by, at least, the means of the tort of malicious prosecution, reaches the conclusion that the Director-General was not precluded from claiming client legal privilege with respect to the particular documents to which Tobias JA had earlier made reference. 27The plaintiffs claim that in the course of the debate and exchange of submissions in the Court of Appeal, Senior Counsel who then appeared for the defendants made statements which, in light of subsequent events, have the effect that the Court ought make the orders now sought because it would be unfair if it did not. 28In the course of the hearing of the appeal on 19 February 2009, the following exchange occurred. The context in which the exchange occurred was the Court seeking to understand, in order to give a ruling on the questions of privilege, how the defendants intended to present their case. At T7, this was said: "Tobias JA: ... In other words all you seem to be doing is putting the plaintiffs to proof. You haven't sought nor would you be permitted at trial to seek to assert a positive case of having reasonable and probable cause because you followed legal advice, then you'd be in trouble. As the pleadings now stand, that's how I understand it. Lindsay: That's what I intended to convey by the idea of a straight bat." 29The President sought to ensure that the position was clear, and to summarise the defendants' position. He did so without demur from Senior Counsel for the defendants when he described it in this way: "That you make no assertion of the reasonableness or legitimacy of the decision to prosecute [on the basis that it] was founded in whole or in part from the contents of any legal advice."

Subsequent Events 30On 20 May 2011, the defendants filed, pursuant to case management orders, an affidavit of Robert Patrick Smith. Mr Smith was at the relevant time, between 1996 through to 2003, the Director-General of the Department of Land and Water Conservation. He was the person who made the final decision to prosecute the first plaintiff. 31Mr Smith deposes to the fact that, without the assistance of seeing any documents in relation to the prosecution of the first plaintiff, he has no recollection of the matter. He sets out in the affidavit his recollection of the usual, or normal procedure followed in matters of the kind involving the first defendant. He then records his evidence on the basis of being shown a redacted copy of a memorandum. 32At paragraph 13 of his affidavit, he says: "13. Having now read the redacted version of the two page document titled 'Native Vegetation Conservation Act - Prosecution - Bailey', I comment as follows. The information within that document confirms that the procedure I adopted was to take into account the views of Chris Guest, the Deputy Director, and having considered all the facts presented to me and any legal advice given orally in the course of discussions with Paul Percival, I then made a decision to commence prosecution proceedings. I am not aware of any other documentation which may have recorded the proceedings of the meeting. I have no recollection as to what was discussed or the manner in which I in fact arrived at my decision. That is to say, I do not recall what documents I reviewed or what was discussed at the meeting. 14. I have no recollection of any direct or indirect dealings with Bruce Clyde Bailey or any business associated with him. I certainly had no animus towards him or anyone associated with any activity that involved the clearing of native vegetation on his land. Whilst I don't know Mr Bailey, and don't have any independent recollection of the events that led to his prosecution, I am confident that I would only have instigated the prosecution in the genuine belief that it was properly supported and that it was in the interests of justice to do so." 33Paul Percival, to whom Mr Smith refers, was at the relevant time the head of the legal section within the Department Land and Water Conservation. The document to which Mr Smith refers, in paragraph 13, is a redacted document where a portion of the second page of the document has been "whited out" and the words "Area Redacted - Legal Professional Privilege" appear in that portion of the document. 34The redacted document was tendered in evidence before me. It is in the form of a memorandum discussing the prosecution, which leads up to, and concludes with, a recommendation: "That the Director-General approves the commencement of a prosecution against Bruce Clyde Bailey in the Land and Environment Court for the clearing of native vegetation contrary to Pt 2 of the NVC Act." 35The memorandum commences with a description of the issue, followed by a description of the factual background. After the factual background, the document contains a series of comments which highlight the Department's view that relevant development consent and approvals under legislation had not been obtained; Mr Bailey's view that the clearing was permitted and approvals and consent were not required; and Mr Bailey's information given to the Department that he had acted on legal advice which the Department discounted, saying that it did not "find it persuasive". 36The commentary concludes with the following: "3.7 The Barwon region has requested that Mr Bailey be prosecuted as the person who authorised the clearing. 3.8 An assessment of the offences according to the DPP Prosecution Policy and Guidelines confirms that the circumstances warrant prosecution. 3.9. Factors which may mitigate the penalty, should Mr Bailey be convicted, are: that he is a first time offender that he relied on independent legal advice that the scope of the Rural Structures exemption is not clearly expressed. 3.10 In view of the large area cleared and the legal question relating to the interpretation of the Rural Structures exemption, it would be appropriate for this prosecution to be brought in the Land and Environment Court rather than in the Local Court." 37As I have earlier said, the memorandum concludes with the notation of the author, namely an officer in the Legal and Compliance Branch. The memorandum is then addressed, through the Deputy Director-General, Mr Guest, to the Director-General. The area after the conclusion of the body of the memorandum and the signature block of the contact officer from the Legal Compliance Branch, and before the signature block of the Deputy Director-General, is the area which has been redacted. 38Below that area, it appears that above the signature block for the Director-General, Mr Smith has signed the memorandum, thereby approving it, and referred the document back to the Deputy Director-General and the head of the Legal Department. 39The note, which is ultimately signed on 1 July 2002, contains this handwritten note, apparently made by Mr Smith: "Paul P, following discussion on 1/7/02 agreement to proceed with prosecution as recommended" Mr Smith has then signed the document. 40Sometime after being served with this affidavit, on 30 July 2012, the plaintiffs served on the defendants, a Notice to Admit Facts. Contained within that notice was the following: "9. That Mr Robert Patrick Smith did not rely upon legal advice in commencing and maintaining the prosecution of the first plaintiff in the Land and Environment Court proceedings number 50073 of 2002 and 50074 of 2002." 41On 10 August 2012, the solicitors for the defendant responded with a Notice which, amongst other things, disputed paragraph 9 and the facts contained in it. 42It is against this background that the Notice of Motion was brought before this Court seeking the orders described earlier. It will be convenient to deal with the orders in the Notice of Motion in sequence.

Order 1 43In the motion, the plaintiffs seek an order pursuant to the Civil Procedure Act or the Evidence Act, for the Court to reject paragraphs 5, 6 and 13 of the affidavit of Mr Smith. The order was ultimately only pressed for a very limited portion of paragraph 13, and also for a limited part of paragraph 14. No objection was taken to the Court dealing with the objection to the part of paragraph 14. 44The contents of paragraphs 13 and 14 of the affidavit have been set out above. Paragraphs 5 and 6 of the affidavit provide a description of Mr Smith's understanding of the investigatory and prosecutorial process in the Department in 2002. It is a description of generality and Mr Smith does not say, that the general process which he described was or was not actually followed in the prosecution of Mr Bailey. Although initially objected to, this material is clearly admissible, and the objection to its admissibility was wisely not pressed. 45Section 61 of the Civil Procedure Act is a section which gives the Court broad powers with respect to practice and procedure, and provides that the Court may give such directions "as it thinks fit ... for the speedy determination of the real issues between the parties to the proceedings". 46Section 192A of the Evidence Act is in the following form: "192A. Advance Rulings and Findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced; or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under s 192, the Court may, if it considers to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings." 47The plaintiffs submit that the identified partsof paragraphs 13 and 14, ought be ruled inadmissible, based on either of the two legislative provisions to which attention has been drawn, for a number of reasons: (a)the material is properly to be described as containing "...vague assertions as to the procedure allegedly followed by the defendants in commencing and maintaining the prosecution"; (b)the affidavit, although professing on its face that Mr Smith has no actual recollection of the constituent elements of his decision-making process, plainly infers that he received legal advice, and acted in a manner which was consistent with it; and (c)the content of the affidavit of Mr Smith is inconsistent with the stance which the defendants have adopted up to the present point in time, in particular, that position enunciated in the Court of Appeal in February 2009. 48In summary, the plaintiffs submitted that what was happening, as a consequence of the reliance on the affidavit of Mr Smith, was that the defendants were seeking: "... to justify or support or assert, consistency with legal advice without pleading it, without producing it by way of discovery (notwithstanding large numbers of documents containing it) and without producing any part of the redacted portion containing that legal advice.". 49The plaintiffs submitted that the position which had now been reached, carried with it a real or significant risk that the trial may need to be aborted, or else significantly disrupted, with attendant additional costs if the position was not clarified prior to trial. 50In the course of oral submissions, the objection to the contents of these paragraphs became more focussed. Ultimately, counsel for the plaintiffs confined his objection to the following precise words: (a)In paragraph 13, the words "... and any legal advice given orally in the course of discussions with Paul Percival"; and (b)in paragraph 14, the words "... and that it was in the interests of justice to do so". 51There is nothing about these words which, in my opinion, would merit the application of s 61 of the Civil Procedure Act. Whether these words remain in, or else are removed from, the affidavit of Mr Smith, and whether they are admitted or not into evidence, the matters of fact which those words raise (if any) do not need a resolution at this stage of the proceedings in order to ensure the speedy determination of the real issues between the parties. 52The words in paragraph 13 do not contain a positive statement that Mr Smith actually received legal advice. It would be difficult for him to make such an assertion and remain consistent with his evidence that he has no recollection specifically of the matter. And that position will remain when he gives evidence orally, if he does. 53As well, it was not suggested that Mr Percival was to be called as a witness, nor that there would be any positive evidence called from any other witness as to the content of the conversation at the conference about which Mr Smith speaks in his affidavit. In those circumstances, the evidence forms a part of a description of the general process likely to have been followed, rather than what actually happened on this particular occasion. 54The words in paragraph 14 set out a state of mind which Mr Smith says that he did, or else, must have formed before authorising the prosecution. Any challenge to a state of mind of an individual, principally occurs in the course of cross-examination. There is nothing about these words which would mean that an irrelevant issue will be raised in the evidence, or that the real issues will not be addressed. On the contrary, the state of Mr Smith's mind at the relevant times is a legitimate and relevant basis for determination. 55Section 192A of the Evidence Act permits, but does not compel, advance rulings to be given on the admissibility of evidence. There may be various sound discretionary considerations that lead a court to make or decline to make an advance ruling under s 192A of the Evidence Act: see Australian Competition & Consumer Commission v Allphones Retail Pty Ltd (No.3) [2009] FCA 1075 at [12]; Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [23]. 56One of the discretionary considerations to be taken into account where relevant, is whether there is a risk that assumptions which are made about evidence to be given in a case prove ultimately not to be correct in light of the way in which a case is in fact presented. These decisions are usually made during the course of the case. 57In particular in this case, although the affidavit of Mr Smith has been served, there is no certainty that Mr Smith will be called to give evidence by the defendants. That is because they may choose not to call any evidence. They may choose to rest their case on the documents or else they may take the view, as the case is running, that such evidence as they have called is sufficient. 58Alternatively, particularly if Mr Smith is not called as the first witness, and there is no necessary reason why he would be, it may be that evidence which has been given in the course of the hearing, either during the plaintiffs' case, or else by other witnesses called by the defendant, may cast a different light on these words which are included. 59In particular, in this case, the words in both paragraphs do not by their terms suggest obvious inadmissibility. Rather, whether they are, or are not, admitted into evidence will depend upon the dynamic unfolding of the issues at the trial. 60Although I accept that the power under s 192A is available to me, I do not think in the exercise of my discretion that it is appropriate to give a ruling based upon such power with respect to the evidence which the plaintiff seeks to challenge. I am persuaded that there are sound discretionary reasons not to, and that no real benefit is to be gained by ruling upon them in advance.

Order 2 61Order 2 seeks the exercise of the Court's power under s 70(1)(c) of the Civil Procedure Act to require the defendants to make admissions. 62Relevantly, s 70 of the Civil Procedure Act is in the following form: "70 Informal proof and admissions (1) At any stage of the proceedings, the Court: (a) ... (b) ... (c) may, by order, require any party (not being a person under incapacity) to make admissions with respect to any document or to any question of fact, and (d) ..." (2)An admission made under subsection (1)(c): (a) is to be for the purpose of the proceeding in which it is made and for no other purpose, and (b)is to be subject to all just exceptions, and (c) may, with the leave of the Court, be amended or withdrawn." 63The admission sought, is that the Court order the First and Third Defendants that Mr Smith, as prosecutor in the Land and Environment Court of NSW, Class 5 proceedings No.50073 and No.50074 of 2002"... did not have regard to legal advice in making his decision to prosecute the first-named plaintiff made on 1 July 2002". 64In submissions outlining the need for such an order, the plaintiffs said: "In order to avoid chaos at the trial, and the possibility of the trial being aborted, the defendant should now state whether or not they rely on any legal advice defence as part of their case." 65In particular, the submissions noted that if the position had changed since the exchange in the Court of Appeal to which earlier reference has been made, then that ought be made plain at this stage, and the appropriate way of achieving this was to require an admission to be made. 66Submissions for the First and Third Defendants made plain their position, namely, that the fact that Mr Smith had legal advice was not a relevant fact to be proved in the course of their case. The following exchange in submissions records that point: "His Honour: Is the fact he had legal advice a relevant fact in the proof of your case? Harvey: I think the short answer to that it is 'no', because it is of historical interest, that this was a procedure, that if Mr Smith's recollection of that procedure is correct, all he is doing is simply confirming I had legal advice. Otherwise he is saying nothing about the legal advice. ... Harvey: I won't tell you what [the legal advice] is, and I say nothing more about it." 67A discussion ensued, and the following exchange is then recorded: "His Honour: ... Is your submission that, the fact that [Mr Smith] had legal advice, a relevant fact in the decision making determination of this Court, that the plaintiff has not proved that he acted without reasonable and probable cause? Harvey: No." 68The circumstance is that the defendants who have been fully and carefully advised. The Court accepts that they are parties who, conscious of their duties and obligations to the Court, have decided to formulate their case in the way counsel has identified, including the way in which they seek to deal with the question of whether Mr Smith received legal advice. The position is no different in substance from that which was described to the Court of Appeal in the exchange to which reference has earlier been made. 69The position is clear. It may not be a position which the plaintiffs regard as favourable to them. Nevertheless, where a party which is properly advised and in the circumstances of this case, has carefully considered its position and declined to make the admissions sought, unless there is a compelling reason, the Court ought not require any admissions to be made. I am unable to see any compelling reason for the Court to compel such admissions. 70The plaintiffs are protected with respect to any costs which may be incurred as a consequence of the failure to make admission. I cannot see that it is in the interests of justice to compel the admission, and I decline so to do.

Order 3 71This order seeks discovery of documents recording all legal advice received by Mr Smith, as prosecutor, prior to the commencement of the proceedings against the first plaintiff in the Land and Environment Court. 72The basis for this order was said to be the change in circumstances brought about by the contents of Mr Smith's affidavit, in particular, that part which dealt with obtaining legal advice. It was submitted, in similar terms to the submissions with respect to Orders 1 and 2, that as the defendants were now putting forward an affirmative case, Mr Smith did rely on legal advice, that client legal privilege had been waived, and an order for discovery ought to be made. 73For the reasons which I have earlier given, I am not persuaded that the affidavit of Mr Smith changes the position which the defendants have adopted. There has been no waiver of privilege in any legal advice provided. The order ought not to be made

Costs 74The ordinary rule is that costs following event: r 42.1 UCPR. The application of that rule would result in the plaintiffs being ordered to pay the costs of the unsuccessful motion. 75However, counsel for the plaintiffs brought to the Court's attention the fact that his instructing solicitor had, by notice from the solicitor for the defendants, been required to attend Court for cross-examination on the contents of his affidavit. That attendance occurred in circumstances of some personal difficulty. At the hearing, he was not cross-examined. 76This was the hearing of an interlocutory motion. It is very common that solicitors file affidavits to ensure that all relevant documents are available to the Court, and to ensure that the opposing parties are on adequate notice of the evidentiary basis of the application. Regrettably, it is not uncommon that adjectival comments and submissions are contained within the body of affidavits. This practice is to be deprecated. A sworn affidavit is not the place for submissions and argument. If they are included in an affidavit, they are unlikely to be accorded any weight even if admitted without objection. 77Cross-examination of a solicitor upon any such affidavit is a most uncommon event. Counsel for the defendants would not explain why Mr Luxton, the solicitor for the plaintiff, had been required to attend for cross-examination. He could not point to any matter which justified such requirement. The fact that Mr Luxton was not cross-examined serves only to confirm that there was no good reason to require him to attend. 78It was submitted that since the defendants had objected to paragraph 4 of Mr Luxton's affidavit, it was appropriate to require him to attend for crossexamination in case the contents of that paragraph were admitted. Ultimately, paragraph 4 was not read. But the contents of paragraph 4 of the affidavit were not matters appropriate for cross-examination. 79In all of the circumstances, I am satisfied that the requirement for Mr Luxton to attend was an unreasonable one, and the defendants should pay any costs associated with his attendance. 80Otherwise the costs should follow the event.

Conclusion 81I am not satisfied that it is in the interests of justice to make the orders sought by the plaintiffs.

Orders 82I make the following orders: (1)Notice of Motion filed 13 August 2012 be dismissed. (2)Defendants to pay the costs of the attendance of Mr Luxton on 17 August 2012. (3)Plaintiffs to pay the defendants' costs of the Motion, excluding the costs the subject of Order 2.

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 May 2013

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