Solicitors:
McGirr Lawyers (appellant)
Department of Planning, Industry & Environment (respondent)
File Number(s): 2019/81751
Decision under appeal Court or tribunal: NSW Land and Environment Court
Jurisdiction: Class 5
Citation: [2020] NSWLEC 69
Date of Decision: 12 June 2020
Before: Pain J
File Number(s): 2019/81751
[2]
Judgment (ex tempore)
BRERETON JA: The applicant Namoi Valley Farms Pty Limited is the respondent in proceedings in the Land and Environment Court wherein it is charged with an offence under s 12 of the Native Vegetation Act 2003 for the alleged clearing of native vegetation on a property at Pilliga in north western New South Wales.
In those proceedings a preliminary question has arisen as to whether the prosecution was instituted within time, that is to say within the two year period stipulated by the relevant legislation. It appears that, the prosecution having been instituted on or about 15 March 2019, the critical date is 15 March 2017. Accordingly, at least so far as appears on the limited material before this court, the question presently before the court below, is whether it can be shown that the Office of Environment and Heritage was in possession of evidence of the alleged offence prior to 15 March 2017.
In connection with the preliminary question, subpoenas were issued at the request of the present applicant for the production of documents, pursuant to which documents were produced by the Office of the Environment and Heritage, some of which were the subject of a claim of legal professional privilege. Ultimately, the argument below and in this Court was confined to one document in particular, that being a document called 'a breach report'. In a judgment delivered on 12 June 2020, Pain J in the Land and Environment Court upheld the prosecutor's claim for legal professional privilege and made orders that the defendant not be granted leave to inspect Packet S4 and not be granted leave to inspect Packet S10, both being documents produced respectively by Ms Wynn and the Office containing the breach report. Her Honour's judgment is to be found in Chief Executive Office of Environment and Heritage and Namoi Valley Farms Pty Limited [2020] NSWLEC 69.
From those interlocutory orders, the present applicant applies by notice filed on 29 June 2020 for leave to appeal to this Court. Leave is required by s 5F of the Criminal Appeal Act 1912.
The application and the submissions in support of it essentially raise three issues: the first is whether her Honour erred in admitting certain paragraphs of the affidavit of Ms Wynn which was read in the proceedings below to support the claim for privilege; the second is whether her Honour erred in inspecting the documents in question before ruling on the claim for privilege, over the objection of the present applicant; and the third is whether in any event the admissible evidence proved to the requisite standard that the breach report was created for the dominant purpose of obtaining professional legal advice or services.
As to the first, the relevant paragraphs of Ms Wynn's affidavit were as follows.
[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.
No objection as to the admissibility of para 12 has been, nor could be, identified.
As to para [13], it may well be that the practice of officers at the time was of slight relevance, but I do not think it can rightly be said that it has no relevance, in circumstances where Ms Wynn deposed in effect that she was acting in accordance with an established practice. As she says in para [2] of her affidavit, she had been employed from February 2017 in a role undertaking compliance and regulation functions in the Dubbo Office of the New South Wales Office of Environment and Heritage and the Regional Operations Group North West, and in that position she would have known and must have been able to depose to what the practice of officers in that office was. As will appear I consider para [13] to be of slight, if any, ultimate significance, but in my view it was not inadmissible.
As to para [14], it seems to me that the deponent of an affidavit claiming legal professional privilege must assert in effect what the purpose of that person was in creating or communicating the relevant document. That is exactly what this deponent does in para [14]. I do not know how else a deponent can prove the subjective purpose of creating a document, other than so say what her purpose was, as the deponent does here. Again, the subjective purpose of the deponent is far from conclusive, but the authorities establish that it is relevant to an ultimate conclusion as to what is the objective purpose.
In my view, therefore, her Honour did not err in admitting paras [12], [13] and [14] of Ms Wynn's affidavit.
As to the second issue - the inspection of documents - criticisms have often been expressed of the practice of placing before a judge on a claim for privilege the documents the subject of the claim and asking the judge to wade through them and evaluate the claim on that basis, including by me in Hancock v Rinehart (Privilege) [2016] NSWSC 12. However, that is not what happened in this case, Her Honour identified, at para [7] of the judgment, that there was an issue as to whether there was one or more than one breach report; that because the hearing was being conducted remotely and the court held the two subpoena packets, the only way of clarifying whether there was one or two, was to inspect the packets; and at para [16] her Honour recorded that that is what had been done, and as a result it was confirmed that there was only the one breach report.
That conclusion appears in her Honour's judgment after paras [13] and [14], in which her Honour had considered the evidence on the claim for privilege and (at [14]) held the claim to be sustained. In other words her Honour did not use the inspection of the documents as a means of ruling on the claim for privilege. No error was involved in her Honour inspecting the documents in the way, and for the limited purpose, for which her Honour did.
Turning then to the ultimate question, which is whether her Honour erred in finding, on the admissible evidence, that it was established that the dominant purpose of the creation of the breach report was obtaining professional legal advice or services, the only evidence was: first, Ms Wynn's description of the practice in the office; secondly, Ms Wynn's statement of her own purpose in creating the breach report, which as her Honour pointed out was unchallenged; and thirdly, the material contained in annexure 1 to Ms Wynn's affidavit, the item "Detailed Report", which is a departmental record containing steps taken in respect of the matter.
That report relevantly includes the creation of the case on 10 April 2017, from a previous incident file (emphasis added); the attachment by Ms Wynn on 2 June 2017 at 3:21pm of a document called "Breach Report"; and on the same day at 4:05pm Ms Wynn's assigning her supervisor David Monahan to the activity and sending him a message, "David please find attached draft breach report for legal for your review". A couple of weeks later, on 19 June, Mr Monahan assigned himself to the activity and apparently acted on Ms Wynn's earlier referral of the draft breach report, and on-forwarded it to his superior in turn.
To my mind, it is more than significant that in Ms Wynn's entry of 2 June 2017 the purpose of the report is characterised as "draft breach report for legal for your review". In circumstances where the evidence was scant, Ms Wynn had deposed to her purpose, that purpose had not been challenged, and it was corroborated by a contemporaneous record made on 2 June, it seems to me that it was well open to the primary Judge to conclude that the dominant purpose of the creation of the report was, as Ms Wynn deposed, the obtaining of professional legal advice and services from the Departmental litigation team.
It may be that there were other purposes, and it has not escaped my mind that, for example, insurance companies often bring into existence loss assessors' reports for the purposes of assessing claims and informing their decision-making process and not only for the purposes of obtaining legal advice. It would have been open to challenge Ms Wynn as to whether the purpose to which she deposed was the only purpose, although now that the rule is in the dominant and not the sole purpose test, the establishment of some other secondary purpose would not have been fatal to the claim. But taken as a whole, Ms Wynn's evidence, taken with the document annexed to her affidavit, establishes that in this case, her dominant purpose was the privileged purpose of obtaining legal advice. Her Honour did not err in so concluding.
In my view, an arguable case of error has not been established, and leave to appeal should be refused.
JOHNSON J: The applicant has failed to demonstrate an arguable case that Pain J fell into legal or factual error in determining the claim of legal professional privilege in this case. Leave to appeal under s5F Criminal Appeal Act 1912 should be refused for the reasons given by Brereton JA.
DAVIES J: I also agree that the application should be dismissed for the reasons given by Brereton JA.
BRERETON JA: The orders of the court are therefore that leave to appeal be refused.
[3]
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Decision last updated: 24 November 2020
Parties
Applicant/Plaintiff:
Namoi Valley Farms Pty Limited
Respondent/Defendant:
Office of Environment and Heritage New South Wales; Department of Premier and Cabinet