Ku-ring-gai Council v Chia

Land and Environment Court (NSW)|2018-03-27|Before: Molesworth AJ, Moore J

INTRODUCTION

This matter is a criminal prosecution under Class 5 of the Court's jurisdiction. By summons filed on 30 September 2016, proceedings were commenced by Ku-ring-gai Council (the Council) against Mr John David Chia (the Defendant), alleging that between about 6 October 2014 and 21 October 2014 at Roseville, NSW, the Defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The alleged offence was to cause injury to 74 trees protected by a Tree Preservation Order without the consent of the Council and where that consent was required. The trees in question, prior to them being cut down, were located on Lot 1 DP 232774, known as 53 Carnarvon Road, Roseville; Lot 20 DP 232774, known as the Roseville Golf Course; and Lot 122 DP752031, forming part of Crown Reserve 90898. It is alleged that the Defendant directed contractors to carry out works including the lopping and removal of the 74 trees.
In related proceedings, Ku-ring-gai Council v Edgar, [2017] NSWLEC 49, before Moore J, the tree-lopping contractor, Mr Craig Edgar, who had actually cut down the same 74 trees the subject of these proceedings, was prosecuted. The defendant Mr Edgar pleaded guilty, was convicted and ordered to pay a fine and the prosecutor's costs.
The matter has a not insubstantial procedural history (including a number of directions hearings, subpoenas, and a notice of motion pertaining to costs), however for present purposes it is only necessary to set out the following matters.
On 14 July 2017, at a directions hearing, I set out a timetable for the parties' compliance with ss 247J, 247K and 247L of the Criminal Procedure Act 1986 (CP Act). Accordingly, on 8 August 2017 the Council filed a Prosecution's Notice under s 247J of the CP Act, stating (relevantly) that: (i) there is no information, document or other thing provided by authorised officers of the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, that has not otherwise been disclosed to the defendant; (j) the prosecutor is not aware of any information, document or other thing that would reasonably be regarded as relevant to the case but that is not in the prosecutor's possession and is not in the defendant's possession; (k) there is no information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness that has not been provided or disclosed in accordance with paragraph 1 above.

Relevant statutory provisions

Before considering the issues raised above it is appropriate to set out for context the statutory provisions relevant to this dispute.
The NTPs were served under r 34.1 of the UCPR which provides that: 34.1 Notice to produce to Court (cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9) (1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner: (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. (2) The other party must comply with a notice to produce: (a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.
As noted at [7] above, r 34.1 of the UCPR is applicable to Class 5 proceedings by virtue of r 5.2 of the LEC Rules. It should be noted that rr 34.2 and 34.3, however, are not applicable. This is reinforced in the Court's Practice Note with respect to subpoenas which states at [4] that: The provisions of Part 33 and Part 34 of the Uniform Civil Procedure Rules 2005 apply to subpoenas and notices to produce issued in the Land and Environment Court, with the following exceptions in Classes 5, 6 and 7 of the Court's jurisdiction: Rules 33.3(1), 33.3(8), 33.6(1) and 33.7 do not apply; Rules 32.3(3), 33.5 and 33.11 do not apply where the issuing party is the Crown; and Rules 34.2 and 34.3 do not apply.
As noted above, on 14 July 2017, I ordered that the parties comply with ss 247J, 247K and 247L of the CP Act. Those provisions state: 247J Prosecution notice - court-ordered preliminary disclosure For the purposes of section 247I (1) (a), the prosecution's notice is to contain the following: (a) the matters required to be included in the notice of the prosecution case under section 247E, (b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant, (c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor. Note: The prosecutor is not required to include in a notice anything that has already been included in a brief of evidence in relation to the matter served on the defendant or that has otherwise been provided or disclosed to the defendant (see section 247U (1)). 247K Defence response - court-ordered preliminary disclosure For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following: (a) the matters required to be included in a notice under section 247F, (b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact, (c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out, (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed, (f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, (g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges, (l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995. Note: The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2)). 247L Prosecution response to defence response - court-ordered preliminary disclosure For the purposes of section 247I (1) (c), the notice of the prosecution response to the defence response is to contain the following: (a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, (b) if the defendant has disclosed an intention to tender any exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit, (c) if the defendant has disclosed an intention to tender any documentary evidence or other exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit, (d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the defendant, and the basis for the objection, (e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the defendant, that might reasonably be expected to assist the case for the defence, (f) a copy of any information, document or other thing that has not already been disclosed to the defendant and that is required to be contained in the notice of the case for the prosecution.
For context purposes only, it is instructive to understand that client legal privilege is dealt with in Pt 3.10, Div 1 of the Evidence Act 1995, which provides (relevantly): 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.
'Confidential communication ' is defined in s 117 as "a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law". 'Confidential document ' is also defined in s 117, as "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."
In order to understand the circumstances when these provisions of the Evidence Act apply in proceedings where a claim for legal professional privilege has been raised, I need do no more that than cite with approval the judgment of Preston CJ in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2017] NSWLEC 88 (EPA v Grafil), in particular [11]-[15]: 11. I agree with the prosecutor that its claim for privilege and objection to inspection of the documents being granted is governed by the common law and not the Evidence Act. 12. At the outset, it is important to identify the stage at which the prosecutor's claim for privilege arises. As Brereton J observed in Carbotech - Australia Pty Ltd v Yates [2008] NSWSC 1151 at [10], it had been recognised at least since National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 that there are three steps in the process of complying with a subpoena: "first, the production of the document to the Court in answer to the subpoena; secondly, the interim use which might be made of the document, such as the granting of access for the purposes of inspection, at which stage typically any questions of privilege are agitated and, thirdly, the tender of the document into evidence." 13. The third stage of tendering the documents into evidence is governed by the provisions of the Evidence Act. Section 118 of the Evidence Act creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal advice (advice privilege). Section 119 creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal services relating to litigation (litigation privilege). The provisions prevent the adducing of evidence which would result in disclosure of the privileged communication or document. The High Court held in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67, that the Evidence Act applies only to the adducing of evidence in the course of a hearing, and not to ancillary processes such as discovery. As Brereton J held in Carbotech - Australia Pty Ltd v Yates at [7], "[it] must follow that the Act does not apply, of its own force, to claims for privilege in respect of the production and inspection of documents on subpoena." 14. The first stage of producing the documents on subpoena is governed by r 1.9 of the UCPR, which authorises an objection on the ground of a claim for privilege to production of a document. As Brereton J noted in Carbotech - Australia Pty Ltd v Yates at [8]: "UCPR, r 1.9, provides a procedure by which objection may be taken to the production of documents required to be produced inter alia by a subpoena upon grounds that the documents are 'privileged documents', again defined by reference to the Evidence Act. But this rule relates to the production of documents, and not the inspection of documents already produced. As Mr Kirk has already pointed out in the course of argument, r 1.9(3) - providing, as it does, that a person may object to producing a document - is addressed only to an objection by the person required to produce the document, and not an objection or claim for privilege by someone else in respect of a document so produced." 15. However, neither the Evidence Act nor UCPR, r 1.9 apply to the second stage of inspecting the documents already produced. The Evidence Act does not apply, of its own force, because evidence is not being adduced in the course of a hearing. UCPR, r 1.9 does not apply, and does not apply the Evidence Act, because the claim for privilege and objection to inspection of the documents produced on subpoena is not made by the person who produced the documents, but by someone else. Instead, the claim for privilege and objection to inspection is governed by the common law: Carbotech - Australia Pty Ltd v Yates at [11] and Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [10].

Defence's submissions

The Defendant contended that, notwithstanding that the duty of a law enforcement officer to disclose to the prosecutor all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person contained in s 15A of the Director of Public Prosecutions Act 1986 does not apply to the investigator in this instance, an analogous common law duty applies.
The Defendant cited R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247, Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708, and Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 as authority for the proposition that, where there is material that is relevant to a criminal prosecution that is not disclosed to the defendant, it is not necessary for the prosecuting authority to be in possession of the non-disclosed material for a miscarriage of justice to have occurred, so long as the investigating authority (which, the Defendant submitted, in this instance would be Mr Richard Myles, an investigator contracted by the Council) was in possession of that material. In short, as per Grey v The Queen at [23], that the defence in a criminal trial should not be obligated to "fossick" for information to which it is entitled.

Council's submissions

With respect to the disclosure of relevant materials to the Defendant, the Council's counsel noted the declarations contained in the Prosecution's Notice under s 247J of the CP Act, referred to above at [5] that: (i) there is no information, document or other thing provided by authorised officers of the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, that has not otherwise been disclosed to the defendant; (j) the prosecutor is not aware of any information, document or other thing that would reasonably be regarded as relevant to the case but that is not in the prosecutor's possession and is not in the defendant's possession; (k) there is no information in the possession of the prosecutor that is relevant to the reliability of a prosecution witness that has not been provided or disclosed in accordance with paragraph 1 above.
It was submitted that via the s 247J Notice, the Council had confirmed that it had disclosed all relevant material (Transcript, p 26, lines 22-34). It was said that there was no evidence of any breach of the prosecutor's duty to disclose and that the Defendant was merely suggesting a possibility that there might have been more that could have been disclosed.
As alluded to above at [12], although the Council noted that it did have concerns about the scope of certain parts of the NTPs, particularly that of NTP2 relating to communications between "council officers" and "persons of interest", it had nonetheless undertaken the requested searches and had produced the few documents responsive to those searches (Transcript, pp 18-19). In short, there was nothing more to produce.
As such, the Council contended that the central matter at issue was that of the legal professional privilege claimed over a number of documents produced in response to NTPs 2, 4 and 5 and as set out in Exhibit A.
The Council submitted that the common law, rather than the Evidence Act applies in relation to a claim of privilege over documents responsive to a subpoena or a notice to produce at the inspection stage, and relied on Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159 (EPA v Queanbeyan) and EPA v Grafil, and Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 in support of this contention.
According to the Council, of the documents under the claim for privilege arose from either the investigation or the prosecution consequent upon that investigation of these proceedings. The emails subject to that claim which had not already been produced were to or from the Council's solicitors HWL Ebsworth.

Consideration

In these proceedings the Defendant filed five NTPs, four of which were contentious when they were referred by the Assistant Registrar of the Court to me for an interlocutory hearing to hear the parties' submissions as to why their respective positions justified the Court making orders in their favour. Inconveniently, neither party had filed a notice of motion which would have clarified, with some particularity, the precise orders they were seeking.
As noted above, NTP1 had been answered to the satisfaction of the Defendant in that all the documents sought (and more) were produced on 30 January 2018. Accordingly NTP1 was not in contention.
In the course of the hearing, NTP3 was also removed from contention with the Defendant's senior counsel indicating that the Defendant now accepted the response from the Council. The Council's response, in part, would result in the production of some documents which had been sought. With respect to the balance of the documents, the response indicated that either the documents alleged to exist did not exist or were not known to the Council or that "persons of interest", in relation to whom documents were sought, were not known to the Council. Consequently, NTP3 was removed from contention.
NTP2, NTP4 and NTP5 remained in contention during the hearing, although as earlier explained the issues with respect to NTP2 were reduced in scope. In response to these NTPs the Council had produced to the Court some documents under cover of a claim that the Defendant ought not be granted access on the basis of legal professional privilege. Accordingly, the hearing before me was largely focussed on the law with respect to legal professional privilege. As neither party had drafted orders or expressed in writing the relief they actually sought, the Court, in the course of the hearing, endeavoured to clarify what the parties were seeking. A resolution of the contentions between the parties could be achieved by the Court making a declaration as to whether legal professional privilege did arise with respect to the disputed documents. Alternatively, the Court could make an order enabling the Defendant to access all documents produced; or alternatively, an order in favour of the Council setting aside part or all of the NTPs still in contention.
These proceedings came before me, by way of an interlocutory hearing, in a most unsatisfactory manner. The Defendant, who was seeking orders from the Court that he be granted access to documents specified in the NTPs remaining in contention, did not follow the proper course to press his case by filing a notice of motion seeking that access. Essentially, the sought documents initially fell into two categories: first, documents which had been produced by the Council over which privilege was claimed; and secondly, documents which had not been identified, and so obviously not produced, but which the Defendant surmised might exist and which were possibly being withheld by the Council, but which might also be subject to privilege if identified.
In the course of the hearing, the Defendant's propositions seemed to evolve to eventually being restricted to the question whether the documents identified in the Exhibit A table, together with the three invoices marked for identification as B, were actually protected by legal professional privilege. The previous inferential suggestion that other documents might have been withheld by the Council or its investigator was effectively withdrawn. Had the Defendant's position not evolved in the course of the hearing the Court would have held that the Defendant's propositions failed at the threshold as mere supposition that documents might exist, without providing any specificity as to their relevance and whether the alleged documents would satisfy the accepted principles governing legitimate forensic purpose. The Court considered that the exercise the Defendant had embarked upon at the outset was essentially one best characterised as "fishing" - not so much to obtain evidence to support his case, but rather to discover whether he has a case at all".
In the normal course, a notice of motion would be filed, precisely setting out the orders sought, with an affidavit in support setting out the basis on which the Defendant was entitled to access the documents. An example of the proper course followed by an applicant seeking an order for access to documents identified in a notice to produce, via an interlocutory application pursuant to notice of motion, was determined by me in Tweed Shire Council v Reysson Pty Ltd (No 2) [2017] NSWLEC 159. As will be seen, this Tweed Shire case is instructive in guiding the resolution of the issues in relation to those NTPs remaining in contention in this case.
The approach of the Council in ventilating its concerns with the NTPs is also vulnerable to criticism. The Council had produced a number of the documents sought in response to the four NTPs, but was resisting the production of other documents remaining in contention, claiming it should not be so required as the law in relation to legal professional privilege protected it from doing so. There had also been resistance to produce some of the documents sought by NTP2 on the grounds of irrelevancy and that the NTP was cast too wide, however as the Defendant accepted during the hearing the Council's response to NTP2, I will spend no more time on it. Despite the Council wishing to resist production, it also failed to follow the proper course by failing to bring a notice of motion seeking orders to set aside the NTPs in whole or in part. Examples of the proper course followed by a party responding to a notice to produce, seeking orders to strike out in whole or in part, were heard and determined by me in Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2), [2017] NSWLEC 137, and Randren House Pty Ltd v Water Administration Ministerial Corporation, [2017] NSWLEC 151.
As a consequence of the irregular course adopted by both the Defendant and the Council in failing to set out the precise competing orders sought by way of notices of motion, which would have been supported by affidavits helpfully expanding on the grounds for seeking the competing orders they respectively sought, the Court found itself contending with a "moving feast", or shifting ground, as it sought to have the contentions of each of the parties precisely defined. Despite the Assistant Register directing that submissions be served by both parties by 4.30pm the day before the hearing, the solicitors for the Council provided a table setting out their comments in response to each NTP at 5.00pm whilst at 7.00pm the solicitors for the Defendant provided an "Outline of Submissions" prepared by them. Given the time of their provision, effectively these documents were provided on the morning of the hearing and both included material addressing issues no longer in contention, the first in relation to NTP3 and the second in relation to NTP2.
With respect to NTP2, in the course of the oral submissions in reply by counsel for both parties, the Court understands that the Defendant had reached the point where it was no longer pressing for further documents in relation to James Alexander McKenzie, James Aloysius McKenzie, G Dahtler, Force of Nature or Sunshine Landscapes (in relation to which the Council had indicated the NTP was too wide and/or seeking records which would not be relevant). The Council's response that there were no records located with respect to some of the documents sought, was accepted by the Defendant. However, with respect to "other persons of interest", the Council indicated that there would be a partial provision of documents, but that others would be protected by legal professional privilege. Accordingly, in examining the arguments regarding legal professional privilege, with respect to NTP2, that examination is a concurrent exercise with respect to NTP4 and NTP5, as the arguments and response are identical with respect to all three NTPs.
Early in his oral submissions, Mr Steirn, senior counsel for the Defendant, highlighted an aspect of this case creating a dilemma: "….there's certainly a tension, if not a conflict, between, on the one hand, the right to legal professional privilege and [on the other hand] the right of the accused to have a fair trial according to law and, in my submission, that's the Gordian knot, your Honour, as you Honour has indicated, talking about the very high threshold in relation to legal professional privilege". (Transcript, p2, lines 28-32). Mr Steirn placed great reliance the NSW Court of Appeal decision in R v Lipton, which in turn cited the High Court decisions in Mallard v The Queen and Grey v The Queen. From Mallard, the Defendant's senior counsel cited, inter alia, the following passages: "[t]he courts have continued to observe the principle that, if disputed material is in the possession of the prosecution, which may help prove a defendant's innocence or avoid a miscarriage of justice, 'the balance comes down resoundingly in favour of disclosing it' " [77] "the applicable principles: The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused". [81]
With due respect to the Defendant's senior counsel, these decisions, to the extent that they explain the principles whereby proper disclosure of the Council's case and evidence should be made to defendants are trite law for the purposes of the subject case - there is no issue that those are correct expressions of the law which bind this Court. However, the Defendant failed to explain what it was that he was inferring was not revealed. There was no indication in these proceedings that some aspect of relevant evidence was being withheld, such as the example in Grey v The Queen wherein the Council's principal witness was an informer for the police who had secured advantages in criminal proceedings in which he had received a lenient sentence.
In the context of the Council's s 247J Notice, the Defendant's s 247K Notice and then the Council's s 247L Notice, there must be more required of the Defendant with respect to the NTPs that to simply assert that the documents were being withheld by reason of the Council claim for legal professional privilege. More is required than to assert that a Gordian knot quandary arises because some of those documents ought be produced in order to satisfy the principles explained in, for instance, Mallard. The Defendant must do more than simply assert that a conflict of principles exists. In short, the Defendant must go the extra distance to explain what it is that he expects is improperly being withheld. Otherwise, again, the Defendant's case is vulnerable to being assessed by the Court as being an exercise in fishing and failing to reveal a legitimate forensic purpose in pursuing documents which may not reveal any material which might assist the Defendant's case.
In considering the context by which the Defendant's arguments are to be considered, the Court put it to the Defendant's counsel (Transcript, p 5) that there ought to be a presumption inherent in the s 247J Notice procedure: that as officers of the court, legal practitioners are under an overriding duty to the Court, aware of their professional and ethical requirements, to ensure that when they prepare a notice, such as a Council's s 247J Notice, revealing the prosecution case and evidence to be placed before the Court, that they are aware of their legal duties and will abide by it. To disturb that presumption, requires more than assertions founded on supposition. The Defendant's initial response should be the Defendant's s 247K Notice, but if that is silent in raising material contentions, then a Defendant embarking upon a NTP pathway should only do so only a valid basis.
To resolve the issues regarding the NTPs remaining in contention, I believe it is necessary to adopt a two stage process of analysis of the issues in this case. First, one must examine the NTPs to determine whether the documents sought, if they existed, would serve a legitimate forensic purpose which might entitle the Defendant to have access to them. This is the "legitimate forensic purpose test" stage. Secondly, once the documents, identified either specifically or being of a class identified with some particularity, are identified, the next question is whether the Council ought not be required to produce them as they are protected by legal professional privilege (as it is known in common law) or client legal privilege as it is defined in the Uniform Evidence Law, specifically the Evidence Act 1995. This is the "legal privilege test" stage. As will be seen, the onus rests with the Defendant pressing his NTP
In considering both NTP4 and NTP5, set out earlier, it must first be noted that their terms are cast in broad language. In NTP4, having defined "records", "the investigation", "the investigator" and "the council officers/representatives", the NTP with a lack of particularity seeks: any findings or reports; any invoices; and deliberation/or decisions; any information or references to information; any communications, any internal communications. With respect to NTP5, having similarly defined terms applicable to all requests (with some slight, but immaterial variances to NTP4), this NTP also seeks (with a similar lack of particularity) "all records" held by any investigator (as defined) including but not limited to: any engagement, any findings or reports, any invoices or timesheets, any notes, diary entries or any other records, any information or references and any communications.
Pertinent to this case, Robson J observed in Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121 at [21]: The principles regarding the setting aside of notices to produce and subpoenas are relatively clear. It is sufficient to note that the party who issues the subpoena/notice to produce bears the onus of establishing that it has a legitimate forensic purpose in seeking the documents (NSW Commissioner of Police v Tuxford [2002] NSWCA 139 ('Tuxford') at [20]). It must be shown that the documents sought will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that they are likely to assist (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [13]-[14]; In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 ('One.Tel') at [23]-[31]).
With the onus resting with the Defendant to establish the legitimate forensic purpose for seeking the documents sought, the Court considers the terms of NTP4 and NTP5 cast the request for documents too broadly. A notice to produce expressed in broad terms is more susceptible to criticism that it is a fishing expedition absent a legitimate forensic purpose, due to it casting the net too far.
When pressed by the Court, Mr Steirn indicated that the very fact that documents had been produced by the Council under cover of legal professional privilege was an indicator that there were indeed documents which were relevant to the Council's case which ought to be disclosed to the Defendant. It was said that a failure to disclose and then produce those documents would fail to meet the standard of disclosure endorsed by the Court of Appeal in Lipton and the earlier cases of Mallard and Grey which were followed in Lipton. The Court believes Mr Steirn has conflated two distinct steps and thereby reveals a flaw in the Defendant's arguments. Mr Steirn submitted that the Council bears the onus in relation to the claim that legal professional privilege applies (Transcript, p3, line 28). However, there is an earlier onus that must be satisfied first in time: the onus resting on the shoulders of the Defendant to satisfy the Court that the NTPs do not represent a "fishing expedition" but rather point to some evidence, some indicator, that the documents sought actually exist, see Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254. In short, the process to be followed must not be allowed to be a substitute for discovery.
In response to the Court pressing Mr Steirn to better identify what it is that is being sought from the Council, Mr Steirn replied that: "I believe, in specific terms, there will be a report by an investigator, a Mr Myles, one report or a number of reports during the course of the investigation which might throw up issues going to an issue in the case and including credibility of any prosecution witness. I believe there's a possibility that statements were taken by Mr Myles which did not find their way into the prosecution brief served on the defendant at any material time". Mr Steirn stressed that he was not submitting that the Council was deliberately withholding relevant material from the Court, rather that there may have been selectivity on the part of the investigator Myles because he didn't consider some material to be relevant and so may not find their way into the Council's brief. (Transcript, p4). The difficulty with the Defendant's argument at this point was there was no explanation as to whether such a suggestion of these extra reports by Mr Myles had any rational basis. It appeared to the Court that this suggestion was merely surmising about what might exist: it was an exercise in fishing. Further, even if it did exist, the likely legitimate forensic purpose was not apparent, especially in the context of the next paragraph.
In considering the sole example of a category of document instanced by the Defendant as one that might be revealed, being a reference to an undisclosed statement that might go to the credibility of a prosecution witness, (perhaps raised by Mr Steirn with the thought that it might be akin to the issues examined in Grey's case upon which he relied), the Court immediately foresaw yet another issue: that is, a possible inconsistency with the 'credibility rule' should the material so revealed be subsequently sought to be produced at the trial. As Pepper J observed in Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 at [18]: "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, the material is generally inadmissible (Peacock v R [2008] NSWCCA 264; (2008) 190 A Crim R 454 at [39])".
I have concluded that the Defendant has not satisfied the onus resting with him to establish that the documents sought (as more broadly defined in each NTP) will meet the necessary legitimate forensic purpose required in order to maintain each NTP. In circumstances where the Defendant revised its contentions in the course of the hearing to just those listed in the Exhibit A table and the invoices marked Exhibit B, the original ambit of the initial four NTPs were curtailed. Had that curtailing not occurred, my negative response to an even wider claim for the production of documents would have been expressed in even stronger terms.
I am faced with a situation where both the Defendant and the Council have sought the Court's judgment as to whether the documents listed within the Exhibit A table and the three invoices marked B are subject to legal professional privilege. In view of my conclusion in the previous paragraph, strictly a determination of the legal professional privilege issue is unnecessary. However, I am mindful that it may be preferable to comprehensively deal with the NTPs rather than to leave undetermined contentions that might be enlivened again later in the proceedings.
Early in the hearing before me I expressed the view to the Defendant's senior counsel that one of the fundamental pillars of our legal system is the protection of legal professional communications between members of a client's legal team, such as between a Council, investigators, counsel and instructing solicitors. It is instructive to refer to the text Legal Professional Privilege in Australia, (2nd ed 2005, LexisNexis Butterworths), written by Dr Ronald Desiatnik. The following passage at [page 2] is pertinent: ... Legal professional privilege, in Australia, is primarily seen as 'a substantive general principle of the common law and not a mere rule of evidence'. Indeed, it is referred to as a 'fundamental principle', which is 'a natural, if not necessary corollary of the rule of law', and even 'a necessary corollary of fundamental, constitutional or human rights' and of 'continued relevance …to the public interest', since it is 'of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a pre-condition of full and unreserved communication with [one's] lawyer. It has even been elevated, progressively, from being a corollary of hum rights to being 'founded upon a notion of fundamental human rights', and thence to being 'an important human right deserving of special protection for that reason'.
The learned author Dr Desiatnik usefully refers to two passages from the High Court judgement in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501: "Legal professional privilege is the shorthand description for the doctrine that prevents the disclosure of confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to the disclosure. To be protected by the privilege, a communication must be made solely for the purpose of contemplated or pending litigation or for the obtaining or giving of legal advice". [At page 550 per McHugh J]. "Once the doctrine applies and is not excluded by the various derogations and exceptions recognised by the common law, it attaches to the communications concerned. No further balancing of public interest, for example between that of protecting the privilege and that of securing the truth, is either necessary or possible. Legal professional privilege is itself the product of a balancing exercise between competing public interests". [At page 583, per Kirby J]
In the context of a proper understanding of the doctrine which protects legal professional privilege as clearly explained in the passages just extracted from Propend Finance and Dr Desiatnik's text, the Court considers the decision of Preston, CJ in Environment Protection Authority v Grafil Pty Ltd; Environment Protection v Mackenzie, [2017] NSWLEC 88 is both instructive and apposite when considering the approach I should take with respect to the legal professional privilege claim issues in this case. In particular, in circumstances where communications between the Council's solicitors and the investigator retained by those solicitors to assist with the assembling of evidence for the prosecution case which are in contention, the following passages in EPA v Grafil at [24]-[26] are entirely on point. For similar reasons adopted by Preston CJ in that case, I have reached the same conclusions with respect to the documents in contention before me, specifically those listed in the Exhibit A table. 24. The prosecutor submitted that the documents in category E are communications passing between an officer of the prosecutor involved in the investigation and consequent prosecution of the offences and an officer of AECOM who had been engaged to undertake investigations, at a time when the prosecution was reasonably anticipated, for the purpose of advancing the prosecutor's case. The prosecutor cited Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22)(1988) 14 NSWLR 132 at 133 that: "A recognised head of legal professional privilege embraces communications, passing between a party (or its representative) and a third person, if they are made with reference to pending litigation for the purpose of the preparation of the case of that party, including the preparation of material to be used as evidence in that case." 25. The prosecutor submitted that legal professional privilege can attach to a communication between an officer of the prosecutor who is not the lawyer for the prosecutor and an expert witness, provided the communication is confidential in the hands of the person from whom production is sought: Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299; [2011] FCA 1057 at [14]. 26. Ms Anderson's affidavit establishes that the relevant officers of AECOM clearly understood that the work they were performing on behalf of the prosecutor was to be kept confidential. Hence, the communications between the prosecutor and the officers of AECOM were intended to be kept confidential in the hands of AECOM, being the person from whom production is now sought: Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) at [14].
At the conclusion of the hearing, relying on the course I adopted in my decision in Tweed Shire Council v Reysson Pty Ltd (No2) [2017] NSWLEC 159, [43]-[47], a case which also involved objection to production in response to a notice to produce on the basis of privilege, senior counsel for the Defendant requested the Court to inspect the documents in relation to which legal professional privilege is claimed by the Council. The Council's counsel agreed with this course indicating that it did not object (Transcript, pp 40-41], if the Court formed the view it would assist.
The Court inspected the documents contained in the sealed packages N6, N7, N8, N10 and N11 marked confidential by the Registrar. The documents accorded with the listing of the documents in the Exhibit A. As I said in Tweed Shire at [45], the inspection was not for the purpose of assessing whether the documents themselves prove the facts necessary to sustain the claim of privilege; rather the inspection was to "provide a means of enabling a claim to be scrutinised and tested": Hancock v Rinehart [2016] NSWSC 12 at [31]. In all instances, with respect to each document the Court concluded that the claim to legal professional privilege was validly made.
Finally, with respect to the three invoices marked B for identification, the Court has inspected them. The Court has concluded that they should also be subject to legal professional privilege. Although invoices reveal little information, they were clearly prepared in relation to or arising from tasks carried out to assist the solicitors in relation to the preparation for the Council's prosecution.

ORDERS

The Court made the following order, by consent of the parties, during the course of the hearing on 27 March 2018 with respect to those documents the Council has produced in response to the NTPs, in relation to which it did not claim legal professional privilege. 1. Access is granted in relation to documents produced under the notices to produce dated 26 February 2018, 5 March 2018, 8 March 2018, 12 March 2018 save those documents marked privileged.
The Court now makes the following additional orders. 1. (2) The Defendant's Notices to Produce NTP2, NTP4 and NTP5, as filed on 26 February, 8 March and 12 March 2018 respectively, be set aside to the extent that all documents the Council submitted were protected by legal professional privilege, as set out in the Council's table marked as exhibit A, are privileged and so shall not be accessed by the Defendant. 2. (3) The Council's three invoices from FactProbe Investigations, numbered 19, 23 and 24 and dated 13 September, 30 September and 1 December 2016, and marked B for identification, are privileged and so shall not be accessed by the Defendant. 3. (4) The documents which were produced in response to Notices to Produce NTP2, NTP4 and NTP5, in relation to which the Council claimed privilege and which were sealed in the Court Registrar's file packages marked N6, N7, N8, N10 and N11, be released to the Council. 4. (5) Costs 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: 04 April 2018

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