Pittwater Council v Brown Brothers Waste Contractors Pty Ltd

The Current Contempt Proceedings 14The current contempt proceedings, which give rise to the present applications, relate to the use of the land in contravention of the 2007 court order in 2010 and 2011. 15By summons filed 1 September 2011, Brown Brothers is charged with contempt on the basis that, on numerous occasions between March 2010 and June 2011, it used the land for the purpose of a waste management facility and for the storage, sorting and/or stockpiling of materials or things other than the storage of tucks and waste containers in contravention of the 2007 court orders. Principally, it is alleged that the land has been used for the storage of waste in skip bins. 16Mr Wayne Brown and Mr Gary Brown have also been charged with contempt as directors of Brown Brothers. 17On 21 October 2011, all the respondents pleaded guilty to the charge. 18By a notice of motion filed 3 February 2012, the respondents seek to withdraw their pleas of guilty entered on 21 October 2011. The respondents have not yet been sentenced in relation to their pleas.

The Basis of the Applications to Withdraw the Pleas of Guilty 19The respondents submit, having regard to the terms of the 1995 development consent, that the plea and the conviction in 2009 the subject of Brown Brothers (No 2), was based on an incorrect assumption of law that the terms of that development consent and the 2007 orders of the Court did not allow the keeping of full waste bins overnight on the premises. 20If, on the true construction of the 1995 development consent, the site can be used for the storage of trucks and skip bins containing waste, then the respondents are not guilty of any breach of the 1995 development consent or the Court orders made in 2007, and therefore, cannot be guilty of the contempt with which they are presently charged. It would, the respondents submitted, be a miscarriage of justice for them to be convicted for contempt if at all relevant times they were acting lawfully in accordance with the 1995 development consent and the 2007 consent orders, properly construed. 21By contrast, the council submits that any issue of construction of the 1995 consent was resolved by the 2007 consent orders terminating those Class 4 proceedings. It is now impermissible to traverse the meaning of the 1995 consent, and the 2007 orders, in light of the 2009 contempt proceedings. This is so having regard to the principle of the finality of litigation. 22When the application to withdraw the pleas of guilty initially came on for hearing on 8 February 2011, the respondents relied on affidavits sworn by Mr Damien Briggs, their solicitor, in support of their application. 23In Mr Brigg's first affidavit (sworn 3 February 2012), he deposed that on 22 October 2011, he was instructed to enter an early guilty plea in response to the contempt proceedings in respect of Brown Brothers and Mr Wayne Brown and Mr Gary Brown. The instructions he received were based "to a large extent" on the decision in Brown Brothers (No 2) and the affidavits filed by the council in support of the current contempt proceedings. Mr Briggs stated that the respondents were also mindful of the potential cost consequences of a contested contempt hearing in light of the costs they were ordered to pay in Brown Brothers (No 2). 24Subsequent to entering the pleas, Mr Briggs undertook extensive investigations into the activities upon the land the subject of the contempt proceedings, prepared draft affidavits of Mr Wayne Brown and Mr Gary Brown, and obtained additional evidence from, for example, a clinical psychologist, an environmental management consultant and engineer, employees of businesses located adjacent to the land and former employees of Brown Brothers. 25Mr Briggs stated that it was only following a conference with senior counsel on 1 February 2012 that he wrote a letter to the council advising that the respondents would be seeking to withdraw the pleas of guilty on the basis that the 1995 development consent, on its true construction, permitted the use of the site as a depot for the storage of trucks and waste containers containing non-putrescible waste. Because the evidence from the respondents was that only non-putrescible waste was stored at the depot, this meant that neither the 1995 development consent nor the 2007 consent orders had been breached, and therefore, the respondents could not be convicted of contempt. 26In his second affidavit (sworn 7 February 2012), Mr Briggs stated that he did not commence to formally act in the proceedings until the first week of September 2011. He stated that it was as a consequence of reading the judgment in Brown Brothers (No 2) that he formed the view that the respondents were in breach of the 2007 Court orders. Further, because he had obtained instructions from the respondents that they were keeping waste bins overnight on the premises containing building waste, he formed the view that the respondents were carrying out the same activity that was the subject of consideration and conviction by the Court in Brown Brothers (No 2) and had resulted in the imposition of "a significant penalty". 27He further stated that, prior to 21 October 2011, the day on which the respondents entered a plea of guilty in the Court, he gave his clients "certain advice". Based on that advice, senior counsel was briefed to enter the pleas. 28Mr Briggs deposed that it was not, however, until 24 November 2011, that he read for the first time a copy of the 1995 development consent in its entirety. Mr Briggs further stated that it was not until a conference with senior counsel on 1 February 2012 that he examined a copy of the 1995 development consent and "the question first arose as to whether that development consent authorised the keeping of waste bins overnight on the premises while containing building waste". It was then that he wrote the letter to the solicitors for the council advising that the pleas of guilty were to be withdrawn. 29At this stage, there was no affidavit evidence from either Mr Wayne Brown or Mr Gary Brown of the facts and circumstances that had given rise to the initial entry of the pleas of guilty or their subsequent decision to withdraw those pleas. That is to say, there was no evidence before the Court as to what their state of mind was at each relevant juncture. The Court expressed its concern regarding the absence of such evidence. 30As it transpired, the hearing of the application to change the pleas did not conclude during the time allocated to it and the matter was adjourned part-heard to 26 and 27 March 2012. The Evidence of the Respondents 31Unsurprisingly, on 1 March 2012, the respondents sought leave to reopen their case to read affidavits affirmed by Mr Wayne Brown (on 21 February 2012) and Mr Gary Brown (on 14 February 2012). The application was not opposed by the council, and the Court determined, in light of its earlier expressed disquiet concerning the absence of any evidence from any of the respondents in support of the application, that it was in the interest of justice that leave be granted to adduce this evidence. 32The affidavit of Mr Gary Brown stated that in mid October 2011 he was aware that Mr Briggs was going to enter a plea of guilty on his behalf and on behalf of Brown Brothers to the charges. Mr Gary Brown stated that as far as he was concerned "my brother and I and the company are all one". 33He recalled, in early February, Mr Briggs telephoning himself and his brother, Mr Wayne Brown, together with his barrister, Mr Peter Tomasetti SC. He recalled the barrister saying to him that he had a case for pleading not guilty and that the plea of guilty should be withdrawn. 34Mr Gary Brown stated that he listened to the advice and when the telephone conversation ended he spoke with his brother, Mr Wayne Brown. He stated that he thought that he had to plead not guilty because "we had to get a determination by the Court of what the development consent meant". He stated that if there was a possibility that he was not guilty then he did not wish to be convicted of the offence of contempt, and accordingly, he instructed Mr Wayne Brown to telephone Mr Briggs and Mr Tomasetti SC and to tell them, on his behalf, to plead not guilty. 35Mr Gary Brown stated that he has, at all times, been guided by the legal advice he obtains from his solicitors. He stated that the only reason he pleaded guilty to the charge before the Court was because he thought that he had no defence and that he "believed that the council would not take proceedings against us unless it was right". 36The affidavit of Mr Wayne Brown was to a similar effect. Mr Wayne Brown stated that in 2007 he understood the general complaint from the council concerned the tipping and sorting of rubbish carried out on the site and that "we were bringing waste onto the site in skip bins which the council stated Brown Brothers could not do". 37Brown Bros retained Wilshire Webb Staunton Beattie ("WWSB") to advise in relation to the 2007 proceedings brought by the council against Brown Bros and briefed a barrister to act on its behalf. In those proceedings Brown Brothers was represented by its solicitor, Mr Anthony Hudson, of WWSB, and Mr Philip Clay of counsel. 38Mr Wayne Brown indicated that Brown Brothers was told by WWSB and the barrister "certain things". Mr Wayne Brown said that he "relied on that advice", and consequently, Mr Hudson signed the 2007 consent orders for Brown Brothers in finalisation of those proceedings. 39Mr Wayne Brown stated that after the 2007 orders were made by the Court, he did what he thought was required of Brown Brothers by those consent orders. 40However, in 2009 the council brought further proceedings against Brown Brothers for contempt of the 2007 orders of the Court, and in particular, for breach of order 1 caused by the storage of full skip bins on the site. Mr Wayne Brown again sought advice from Mr Anthony Hudson and Mr Philip Clay and then pleaded guilty to the charge. 41I interpolate here the uncontroversial fact that, notwithstanding this advice, until the day of the hearing it was Mr Wayne Brown's belief that the terms of the 1995 development consent and the 2007 orders, specifically order 1, were ambiguous and that the storage of full skip bins was permitted on the land. However, it was accepted at the hearing that whatever ambiguity existed in respect of the 1995 content, the terms of the 2007 Court orders were clear and that it was a contravention of those orders to bring onto the land waste in a waste container. 42Mr Wayne Brown stated in his affidavit that in relation to the current contempt proceedings, the company, his brother and himself engaged DG Briggs and Associates to advise them. 43His understanding was that the proceedings covered much the same conduct that they had been convicted for in 2009, "in particular bringing waste onto the premises". 44Based on the material served by the council, "and my advice from Mr Briggs" he believed he had no defence to the latest contempt charge and he decided to plead guilty. He recalled Mr Briggs saying to him, "this is the same as the conduct you were punished for in 2009" and "if you do an early guilty plea, the Court looks at it more leniently." 45Mr Wayne Brown stated that he was determined to keep the costs of the proceedings to an absolute minimum in light of the costs bill the company was ordered to pay on the last occasion. It was also a concern of his that the fine could be bigger. Accordingly, relying on Mr Briggs' advice that they had no defence to the charge of contempt, he instructed him to plead guilty. 46The Court file reveals that on 21 October 2011 when the guilty pleas were entered, it was Mr Tomasetti SC who entered the pleas on behalf of the respondents. The matter was set down for a two day hearing on 7 and 8 February 2012 on that day. 47In early February 2012, Mr Wayne Brown received a telephone call from Mr Briggs and Mr Tomasetti SC, following which he understood that it was arguable that the 2007 orders did not prevent them from keeping non-putrescible waste on the premises in skip bins. It was also his understanding that this accorded with the 1995 development consent. 48During the conversation Mr Briggs advised him to change his plea to not guilty stating "but it is your decision to do so". Mr Tomasetti SC said to him "it is the right thing to do." He also told Mr Wayne Brown that if convicted the Court could hand out a heavier penalty that on the last occasion. Mr Tomasetti SC urged him to "get back to us very quickly", no doubt due to the imminent hearing. Mr Wayne Brown did, after consulting his wife, and instructed his legal advisers to change his plea. The Terms of the Subpoenas 49The subpoena to Mr Anthony Hudson is in these terms: All records of advice given by you, any other solicitor of Wilshire Webb Staunton Beattie, or Mr Philip Clay SC to Brown Brothers Waste Contractors Pty Ltd, Wayne Gordon Brown or Gary Neil Brown: (a) in relation to the Order made by in these proceedings by the Land and Environment Court on 10 August 2007; and (b) in relation to the entry of plea in these proceedings by Brown Brothers Waste Contractors Pty Ltd on 17 April 2009. 50The subpoena to Mr Damien Briggs, however, was more expansive in scope, even after it was amended following discussion between the parties. It requested the following documents: (a) all records of: (i) advice relating to the entry or withdrawal of the pleas of guilty to any or all of the charges of contempt in these proceedings or relating to the prospects of defending any or all of those charges given by Damien Gerard Briggs to Brown Brothers Waste Contractors Pty Ltd, Wayne Gordon Brown or Gary Neil Brown in the period from 1 September 2011 to 1 February 2012 inclusive; and (ii) the dates and times any such advice was given; including but not limited to written documents, file notes, memoranda, audio recordings, invoices, narrations and diary entries, including original electronic copies of any such documents that are in electronic form that include the embedded data of the origin of each electronic document. (b) all records of: (i) advice relating to the entry or withdrawal of the pleas of guilty to any or all of the charges of contempt in these proceedings or relating to the prospects of defending any or all of those charges given by Mr Peter Tomasetti SC of Mr Philip Clay SC to Brown Brothers Waste Contractors Pty Ltd, Wayne Gordon Brown or Gary Neil Brown, or to Damien Gerard Briggs, in the period from 1 September 2011 to 1 February 2012 inclusive; (ii) the dates and times any such advice was given; including but not limited to written documents, file notes, memoranda, audio recordings, invoices, narrations and diary entries, including original electronic copies of such any such documents that are in electronic form that include the embedded data of the origin of each electronic document. (c) all records of: (i) instructions on plea given by Brown Brothers Waste Contractors Pty Ltd, Wayne Gordon Brown or Gary Neil Brown to Damien Gerard Briggs or Mr Peter Tomasetti SC in the period from 1 September 2011 to 1 February 2012; and (ii) the dates and time of any such instructions were give; including but not limited to written documents, file notes, memoranda, audio recordings, invoices, narrations and diary entries, including original electronic copies of such any such documents that are in electronic form that include the embedded data of the origin of each electronic document. Applicable Legal Principles 51The applicable legal principles to be applied to an application to set aside a subpoena have been stated in a number of decisions in this Court. In Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 2) [2011] NSWLEC 25 I set out the following (at [11]-[13]): 11 Rule 33.4 of the Uniform Civil Procedure Rules 2005 provides that the Court may, on the application of a party, set aside a subpoena in whole or in part, or grant other relief in respect of it. 12 The subpoena must be framed in terms that enables it to be positively established that a legitimate forensics purpose is served by the issuing of the subpoena (Commissioner for Railways v Small (1938) 38 SR (NSW) 564, NSW Commissioner of Police v Tuxford [2002] NSWCA 139 and Azar Building Construction Services Pty Ltd v Transport Infrastructure Corporation [2010] NSWLEC 110 at [20]). Whether such a purpose is met in any particular case turns upon the connection the issues raised in the proceedings have with the documents the subject of the subpoena (Azar at [20]). 13 In Azar, Craig J helpfully described some of the circumstances in which a subpoena will be liable to be set aside because no legitimate purpose can be established (at [20]-[21]): 20...Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish: (i)that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69]; (ii)that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432; (iii)that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4]; (iv)that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. 21The principle was extensively discussed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. Tobias JA (in whose judgment Basten JA and Handley AJA agreed) considered at [22] the requirement for it to be shown that it is "likely" that the documentation sought will materially assist on an identified issue or the alternative requirement that there be a reasonable basis beyond speculation that it is likely the documentation will so assist was not relevantly different to a requirement that it be "on the cards" that the documents would materially assist on an identified issue. Importantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought. 52More recently, in Young v King (No 3) [2012] NSWLEC 42 Sheahan J comprehensively analysed the authorities in relation to the setting aside of notices to produce and subpoenas on the grounds of relevance (at [55]-[97]). In particular, his Honour quoted the following authorities which I respectfully reproduce and whose principles I endorse (at [56]-[63]); 56The classic statement of the test is generally said to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors ("Arnotts") (1989) 88 ALR 90; (1989) 21 FCR 306, at 103 of the ALR report. According to Arnotts , the correct questions for the court are (emphasis added): Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? ... Is the subpoena seriously and unfairly burdensome or prejudicial ? ... The test of adjectival relevance is satisfied if the material has apparent relevance . 57His Honour concluded (also at 103, with emphasis again added) that the test was satisfied in that case because the documents sought " could possibly throw light on the issues in the main case ". 58The use of the word " possibly " in His Honour's finding has been said, by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation ("Cosco") (1997) 37 ATR 43 at 439, to mean that: The material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. (emphasis mine). 59Brereton J noted in Portal Software International Pty Ltd v Bodsworth ("Portal ") [2005] NSWSC 1115, at [22], that it had become clear by that time that absence of apparent relevance is a sufficient ground to set aside a subpoena or a NTP. Where it is asserted that there is an abuse of process, " some onus would lie on the person contending that ... to make that allegation good " (at [28]), but where the question of relevance is raised it must be shown by the party issuing the notice rather than refuted by the producer (at [29]). 60In ICAP Pty Ltd & Ors v Moebes & Anor ('ICAP') [2009] NSWSC 306, Nicholas J agreed with the construction adopted in Cosco , and in an unreported judgment in McLaughlin v Dungowan Manly Pty Ltd (' McLaughlin ' - NSWSC 4924/06) on 14 July 2009, Ward J agreed with Nicholas J. 61Ward J also noted (at [28] of McLaughlin ) that Nicholas J had expressed caution in ICAP about application of a test of " legitimate forensic purpose " which incorporates phrases like " on the cards " or " could possibly throw light on ", but that Beazley JA (in Attorney-General (NSW) v Chidgey ('Chidgey') [2008] NSWCCA 65; (2008) 182 A Crim R 536) had found no reason to depart from the test or from the language adopted by Gibbs CJ in Alister v R ("Alister") (1984) 154 CLR 404. I will return to Alister and Chidgey . (See below, at [71] and [85] respectively). 62Ward J noted (at [32]) that Nicholas J had stated the test (in [30]), in civil proceedings, in terms that (emphasis added): It must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will. 63Her Honour then observed (at [33]): That requires a consideration of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena. 53In summary, it must be demonstrated that it is likely that the legal advices sought by the subpoenas will materially assist on an identified issue in the proceedings, or that there is a reasonable basis beyond speculation that the documents will assist. The Subpoenas Need Not Be Set Aside 54The submissions put by the respondents in support of the applications to set aside the subpoenas applied to both subpoenas. 55Essentially, the respondents submitted that the documents sought by the subpoenas were irrelevant because the real issue for determination in the application to withdraw the guilty pleas was the proper construction of the 1995 consent and the 2007 Court orders, which was a legal question that was wholly divorced from the state of mind of the respondents either at the time they pleaded guilty in 2009, at the time they pleaded guilty in 2011, or at the time they instructed their legal advisers to withdraw their plea in 2012. It was the possible miscarriage of justice that would flow from the respondents being convicted for activities that they were lawfully entitled to engage upon the land that was said to be the basis of the application to change the pleas, and accordingly, the production of documents constituting legal advice or directed to ascertaining the respondents' state of mind were irrelevant. 56But the better characterisation of the respondents' position is that the pleas were entered due to a misapprehension in the minds of each of the respondents, engendered by erroneous or inadequate legal advice - either in 2009 or 2011 - that the conduct of storing waste in bins on the site amounted to a contravention of the 2007 orders and the 1995 consent. It is this misapprehension that gives rise to a lack of integrity in the pleas of guilty, and it is on this basis that the respondents ought to be permitted to withdraw their guilty pleas. 57Viewed in this way, the forensic purpose of the documents sought becomes tolerably clear, namely, to elicit the production of documents that will permit the council to test the basis of the alleged misapprehension and the nexus, if any, between this misapprehension and the entry of the pleas of guilty. As the council pointed out, pleas of guilty are entered not only because the accused believes that all the elements of the offence are met, but perhaps because he or she may wish to avail themselves of the discount for an early plea or to avoid or minimise the payment of legal costs. 58The forensic purpose of obtaining the documents is further amplified when consideration is given to the fact that in 2009 the respondents were alive to a potential ambiguity inherent in order 1 of the 2007 Court orders and believed that it permitted the storage of full bins on the site, but pleaded guilty to the contempt in any event. 59While the respondents are correct to note that none of the cases referred to above enunciating the applicable legal principles to be applied in setting aside a subpoena expressly had regard to ss 56-68 of the CPA, it can be no answer to the legitimate production of documents pursuant to a subpoena or notice to produce that will materially assist on an identified issue in the proceedings, and that are not oppressive, that to do so will incur expense and take time. 60The overriding purpose contained in s 56 of the CPA incorporates the concept of justice ("just, quick and cheap", emphasis added), and to deny the council the ability to compel production of the documents would, given their relevance, be entirely unjust in all the circumstances, circumstances that include the fact that it was not until the proceedings were adjourned that the respondents served evidence from Mr Wayne Brown and Mr Gary Brown, which in turn caused the subpoenas to be issued. 61In relation to the subpoena issued to Mr Briggs, the respondents additionally took issue with the relevance of documents sought "relating to the prospects of defending all or any of the [current] charges" of contempt. The respondents argued that this phrase captured documents that travelled well beyond what was in the mind of the respondents at the time they entered the pleas of guilty or made the decision to withdraw them, and would compel production of legal advice concerning the totality of the respondents' response to the contempt charge, which would include advice on matters falling outside the purview of their mental state at the times identified above and in respect of which privilege had not been waived. 62This submission, although initially persuasive, must be rejected. In so doing, it must be borne in mind that a plea of guilty is an admission of all of the elements of the offence. It may be presumed, that in considering whether or not to plead guilty, the respondents gave careful contemplation to whether they could defend the charges against them. This presumption is confirmed by the statement contained in the affidavit evidence of Mr Wayne Brown that "based on... the advice from Mr Briggs I believed that I had no defence in these latest proceedings and should plead guilty". In my view, such deliberations are relevant to the legitimate forensic purpose of the documents sought to be produced and the subpoena should not be set aside on this or any other basis. 63While I appreciate that the council's access to the documents produced on subpoena to either Mr Briggs or Mr Hudson may be met with a claim for legal professional privilege, this does not prevent the material from being produced in answer to subpoenas that were properly issued. Orders 64In relation to the application to set aside the subpoena to Mr Anthony Hudson, the application is dismissed. The costs of the application being the council's costs in the cause. 65In relation to the application to set aside the subpoena to Mr Damien Briggs, the application is dismissed. 66However, because the subpoena would have been, but for the amendments agreed to by the parties during the hearing, in all likelihood set aside given its initially overly wide scope, the appropriate costs order is that the costs of this application be the respondents' costs in the cause.

Amendments 18 December 2013 - Amending typographical errors Amended paragraphs: Cover sheet 18 December 2013 - Amending typographical error Amended paragraphs: 17 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: 18 December 2013