SOLICITORS:
Department of Planning, Industry and Environment (Prosecutor)
McGirr Lawyers (Defendant)
File Number(s): 19/81751
[2]
EX TEMPORE Judgment
The Defendant Namoi Valley Farms Pty Ltd is charged with an offence under s 12 of the Native Vegetation Act 2003 for the alleged clearing of native vegetation at a property in Pilliga, NSW (Property). Subpoenas have been issued to the Prosecutor, Office of Environment and Heritage (OEH) by the Defendant. The Prosecutor has filed a notice of motion dated 9 June 2020 seeking orders that the Defendant not be granted leave to access documents in two subpoena packets as legal professional privilege is claimed.
The affidavit of Ms Samantha Wynn dated 9 June 2020 was read in support of the notice of motion. A number of annexures were annexed to the affidavit. Only "Item Detail Report" bearing the NSW Environment Protection Authority logo consisting of a work log and staff allocations in the case referred to as "Namoi Valley Farms Pty Limited Clifton Moree Pilliga" (Annexure 1) was referred to.
Ms Wynn was employed as a Compliance and Regulation Officer at the Dubbo office of the OEH between February and October 2017. Ms Wynn deposed that she was allocated the role of investigating the alleged clearing of native vegetation at the Property on 22 March 2017 by Mr David Minehan.
Paragraphs 12-14 of Ms Wynn's affidavit provided:
12 The Privileged Documents contain the breach report I have prepared in relation to the investigation of alleged clearing of native vegetation at the Property (Breach Report).
13 The practice of officers at the Office of Environment and Heritage investigating alleged clearing of native vegetation offences was to prepare a breach report to provide to the litigation team within the Department of Planning and Environment (now Department) (Department Litigation Team) for the purpose of obtaining legal advice about possibly commencing a prosecution.
14 When I prepared the Breach Report contained in the Privileged Documents, I prepared it for the purpose of obtaining legal advice from the Department Litigation Team about possibly commencing a prosecution.
Paragraphs 19-20 of Ms Wynn's affidavit provided:
19 The other document produced by the Department was an email, sent on 19 June 2017, from David Minehan to OEH ROD at North West Mailbox, which I was cc'ed into. This is the email mailbox of the Director of the North West Office, who Mr Minehan and I reported to.
20 This email and its attachments were sent in the course of being provided with professional legal services from the Department Litigation Team, in relation to possibly commencing a prosecution in each of those respective investigations.
At the outset of the hearing of the notice of motion the Defendant no longer pressed access to two of the four documents the subject of the notice of motion. In the course of argument the documents over which a claim was made were further refined and an email dated 19 June 2017 referred to in pars 19-20 of Ms Wynn's affidavit was produced to the Defendant by the Prosecutor. Privilege is still claimed over the attachment to that email. According to the Prosecutor the attachment to the 19 June 2017 email was a breach report which is the same breach report referred to at pars 12-14 of Ms Wynn's affidavit. The Defendant did not accept that there was only one breach report for the purposes of the notice of motion because there was more than one reference to a breach report in the Item Detail Report annexed to Ms Wynn's affidavit (Annexure 1).
Because the hearing was conducted remotely via telephone and the Court holds the two subpoena packets the only way of clarifying the factual circumstance of whether there is one or two breach reports is to inspect the packets. The Defendant opposed the Court doing so when the Prosecutor suggested that be done.
[3]
Evidence Act 1995 (NSW)
Sections 117 (definitions of confidential communication and confidential document) 118 and 119 of the Evidence Act 1995 apply.
Part 3.10 Privileges
Division 1 Client legal privilege
117 Definitions
(1) In this Division -
…
confidential document means a document prepared in such circumstances that, when it was prepared -
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
…
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The Prosecutor submitted that the purpose of a document is a question of fact to be determined objectively, and the subjective intention of the person who created the document is relevant to that finding: Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 (Sydney Airports Corporation Ltd) at [6]. The Prosecutor submitted the breach report is a "confidential document" as defined in s 117 as when it was prepared, applying (b), "the person for whom it was prepared" (legal officers in the litigation team of OEH) were under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. Ms Wynn's affidavit attests to the purpose of production of the document being to obtain legal advice which the legal officers and OEH were under an obligation not to disclose. That no date for the documents is referred to is irrelevant in light of her evidence as to the purpose of the document. Sections 118 and 119 of the Evidence Act apply to prevent disclosure of the confidential document in issue.
The Defendant submitted that pars 12-14 of Ms Wynn's evidence were no more than assertions, citing Judd J in Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 (Krok) at [15] stating that:
In the present proceeding, the trustee's claim for client legal privilege is taken to have been made in the course of litigation with the beneficiary. Ordinarily, a party amenable to a discovery obligation, from whom disclosure is sought, must establish a claim to client legal privilege if that party is to be relieved from a disclosure obligation on that basis. Evidence is required. Mere assertions and conclusions are not sufficient. The evidentiary foundation may, of course, be augmented by inspection, although inspection alone can rarely, if ever, establish a claim.
Ms Wynn's evidence does not establish that the dominant purpose of the breach report was to obtain legal advice, meaning a clear paramountcy of purpose: Beach J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [33]. The breach report was brought into existence before being attached to an email from Ms Wynn. It is designed to be a departmental record of information gathered at a particular time and place accessible on the departmental computer system for all authorised officers, as can be seen from the Item Detail Report attached to Ms Wynn's affidavit (Annexure 1). That it is a useful document to attach to an email seeking advice from the litigation team is accepted but that does not mean that is the dominant purpose.
Ms Wynn's evidence concerning the attachment to the email dated 19 June 2017 at pars 19-20 is hearsay as she was not the author of the email, being simply copied into it.
[4]
Consideration
The Prosecutor raises an objection to the disclosure of documents pursuant to s 131A of the Evidence Act on the basis of legal professional privilege. It must establish its objection on the balance of probabilities in light of s 142 of the Evidence Act. Contrary to the Defendant's submission that Ms Wynn's evidence is simply assertion, her sworn evidence is that she is the author of the breach report, who can obviously attest to why she produced it and its purpose, as she has done. Her evidence is that the purpose for the creation of the breach report was to obtain legal advice concerning possible prosecution proceedings. There being no challenge to that evidence, I accept it. As identified by the Prosecutor, Ms Wynn's subjective intention can be given weight in determining objectively what the dominant purpose is, citing Sydney Airports Corporation Ltd at [6]. While no date for the document is in evidence, apart from referring to the Item Detail Report in Annexure 1 to Ms Wynn's affidavit where reference to breach report occurs, the matters identified in Krok at [15] are established in terms of the author of the document and its purpose and the elements of confidentiality are provided.
I consider the Prosecutor has established on the balance of probabilities that the breach report is a confidential document as defined in s 117 of the Evidence Act in light of Ms Wynn's unchallenged evidence and the obligations of the OEH's lawyers not to disclose that information.
Objections have been taken to the production of a confidential document and the evidence should not be adduced in light of s 118 of the Evidence Act as it was produced for the purpose of providing legal advice and/or in light of s 119 of the Evidence Act which refers to objection being taken to the production of a confidential document being provided for the dominant purpose of professional legal services concerning anticipated proceedings in which the client is a party.
It is necessary to resolve whether one breach report or two exists and I have looked at the two subpoena packets and can confirm that there is only one breach report.
I will make the orders sought in the Prosecutor's notice of motion as follows:
1. The Defendant not be granted leave to inspect Packet S-4 pursuant to r 33.8 of the Uniform Civil Procedure Rules 2005 (UCPR).
2. The Defendant not be granted leave to inspect Packet S-10 pursuant to r 33.8 of the UCPR.
[5]
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: 16 June 2020
Parties
Applicant/Plaintiff:
Chief Executive, Office of Environment and Heritage