Port Macquarie-Hastings Council v Mansfield

Land and Environment Court (NSW)|2018-04-06|Before: Sheahan J

The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 Thompson v Randwick Municipal Council (1950) 81 CLR 87 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 Young v King (No 3) [2012] NSWLEC 42 Zhang v Woodgate and Lane Cove Council (2015) 208 LGERA 1; [2015] NSWLEC 10 Texts Cited: Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, 2013, and 6th ed, 2017, Lawbook Co.) Category: Procedural and other rulings Parties: Port Macquarie-Hastings Council (Prosecutor) Paul Scott Mansfield (Defendant) Representation: Counsel: Mr R O'Gorman-Hughes (Prosecutor) Mr C Ireland (Defendant)

Solicitors: Lindsay Taylor Lawyers (Prosecutor) Colin Biggers & Paisley(Defendant) File Number(s): 2017/2870062017/287056

B: The Charges

For completeness, I now set out the charges, which were filed on 21 September 2017. (Some emphasis has been added).
In matter number 2017/287006, Mansfield is charged with an: "... offence against s125(1) of the Environmental Planning and Assessment Act 1979 [("EPA Act")] that he did a matter forbidden to be done by s76B(a) of the said Act, namely that, between 1 November 2013 and 30 November 2015, he did, carry out development (not being exempt development) (Development) on land (Land) which development an environmental planning instrument (EPI) provided (Provision) was prohibited development. Pursuant to s127(5B) of the [EPA Act], evidence of the offence first came to the attention of a Council Investigation Officer C Henderson on 23 September 2015. Particulars: Land: Lot 101 DP 754444 Ocean Drive, Grants Beach Development: Development for innominate purpose point 4 Land Use Table: a) Earthworks including excavation and filling of the site and retaining walls; b) The construction of a facility that appears to be a recreation hall, with toilets and showers and an internal kitchen; c) A barbecue and paved area adjoining the recreation hall; d) A teenagers retreat built in a shipping container; e) A laundry built in a shipping container; f) A covered walkway that leads from the recreation hall to a bunkhouse; g) A bunkhouse that includes 7 units, each with ensuites; h) Concrete piers and plumbing next to the bunkhouse, which appears to be ready to receive cabins for installation; i) A concrete slab which is the future site for a shed to be built; j) A large carpark area; k) A shipping container used for storage; I) A shipping container which houses electricity generators m) Two large water tanks; n) Two septic tanks and absorption trench; EPI: Port Macquarie-Hastings Local Environmental Plan 2011 Provision: Clause 2.3(1)(c) and Land use table"
In matter number 2017/287056, he is charged with an: "... offence against s125(1) of the [EPA Act] that he did a matter forbidden to be done by s76A(1) of the said Act, namely that, between 1 November 2013 and 30 November 2015, he did, without a development consent having been obtained for same, carry out development (not being exempt development) (Development) on land (Land) which development an environmental planning instrument (EPI) provided (Provision) may not be carried out except with development consent. Pursuant to s127(5B) of the [EPA Act], evidence of the offence first came to the attention of a Council Investigation Officer C Henderson on 23 September 2015."
Save that the development is stated to be for "the purpose of dwelling houses", rather than the "innominate [prohibited] purpose" particularised in 2017/287006, the supporting particulars in 2017/287056 are identical to those in 2017/287006, including the development items (a) to (n).
The Defendant claims there is conflict or inconsistency between the two charges (T06.04.18 p2, L6, and the Defendant's reply subs par 1), but that is not the Court's present concern.

C: The Terms of the Subpoenas

The subject subpoenas were issued on 7 February 2018.
ENP was directed to produce (some emphasis added): 1. all Documents relating to the Development of land at 743 Ocean Drive, Grants Beach (Lot 101 in Deposited Plan 75444) (Land) for work carried out in the period 1 November 2013 to 30 November 2015 including, but not limited to: a. invoices and quotations from suppliers, contractors and consultants, b. correspondence (including emails and letters) between Eagle Nest Park Pty Ltd ACN 141 232 144 and any supplier, contractor and consultant; c. file notes, emails, records of any director, shareholder, employee, agent or officer of Eagle Nest Park Pty Ltd ACN 141 232 144 relating to or recording the Development; d. business plans and reports in relation to the use of the Land for an eco-tourism facility; e. loan applications to any bank, mortgage broker or financial institution in relation to funding for the works or the proposed eco-tourism facility; and f. bank statements showing payments made to suppliers, contractors and consultants involved in the Development. 2. all Documents that record any correspondence, communication or instruction provided to King & Campbell Pty Ltd ACN 001 105 442 or any consultant or person involved in preparing or lodging an application to the Port Macquarie - Hastings Council seeking development consent for the Development or the continued use of the Development between the period (sic) 1 December 2015 and 30 June 2017.
"Documents" and "Development" were defined (in par 3) as follows: 'Documents' has the meaning provided in the Evidence Act 1995 (NSW) and includes originals and/or copies and/or drafts of letters, facsimiles, memoranda, reports, notes and file notes, diary notes, accounts, quotations, business cards, policy and procedure manuals and any other written material (including documents stored in computerised form or electronic form) in your possession, custody, or control. 'Development' means the development on the Land, including but not limited to: a. Earthworks including excavation and filling of the site and retaining walls; b. The construction of a facility that appears to be a recreation hall, with toilets and showers and an internal kitchen; c. A barbecue and paved area adjoining the recreation hall; d. A teenagers retreat built in a shipping container; e. A laundry built in a shipping container; f. A covered walkway that leads from the recreation hall to a bunkhouse; g. A bunkhouse that includes 7 units, each with ensuites; h. Concrete piers and plumbing next to the bunkhouse, which appears to be ready to receive cabins for installation; i. A concrete slab which is the future site for a shed to be built; j. A large carpark area; k. A shipping container used for storage; I. A shipping container which houses electricity generators; m. Two large water tanks; and n. Two septic tanks and absorption trench.
K&C was directed to produce (some emphasis added): 1. all Documents created between 1 December 2015 and 30 June 2017 relating to the Development or the seeking or granting of development consent for the Development of land at 743 Ocean Drive, Grants Beach (Lot 101 in Deposited Plan 75444) (Land) that took place between 1 November 2013 and 30 November 2015 including, but not limited to: a. invoices and quotations issued to Paul Scott Mansfield, Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust b. correspondence (including emails and letters) between King & Campbell Pty Ltd ACN 001 105 442 and: i. Paul Scott Mansfield; or ii. any director, officer, employee or agent of either Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust ;or iii. any supplier, contractor and consultant or agents of the above; c. file notes of any meetings between any director, shareholder, employee, agent or officer of King & Campbell Pty Ltd ACN 001 105 442, Paul Scott Mansfield and any director, shareholder, employee, agent or officer of Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust; d. plans and reports in relation to the use of the Land for a dwelling or an eco-tourism facility; e. bank statements of accounts of King & Campbell Pty Ltd ACN 001 105 442 showing: i. payments made to King & Campbell Pty Ltd ACN 001 105 442 by Paul Scott Mansfield or Eagle Nest Park Pty Ltd ACN 141 232 144; and ii. any payments made to suppliers, contractors and consultants involved in the Development by King & Campbell Pty Ltd ACN 001 105 442 on behalf of Paul Scott Mansfield or Eagle Nest Park Pty Ltd ACN 141 232 144
That K&C subpoena included (in its par 2) the same definitions of "Document" (sic) and "Development" as the ENP subpoena.
It is, however, to be noted that the correct "DP" number for the subject land is "754444", and not "75444", an error which occurs frequently in the material before the Court, including in the subject subpoenas.
K&C's response to the now-challenged subpoena (Exhibit D2) says that K&C was engaged by the Defendant in January 2016 to seek consent for an eco-tourist facility on the subject land. K&C provided on a USB all relevant documentation, from the period from January 2016 to 30 June 2017, and added, inter alia, these comments: • All [K&C] correspondence has been made with Paul Mansfield with respect to the subject site and project. No correspondence has been made with employees of Paul Mansfield or [ENP]; ... • The email correspondence has also been separated into sent and received folders to ensure all correspondence is provided.

D: The Notices of Motion come on for hearing

On 5 March 2018, following correspondence between the solicitors for the parties, Mansfield's solicitors filed two Notices of Motion ("NOM"), in each matter.
The NsOM seek: 1. that the subpoena to K&C, and paragraphs 1 and 2 of the subpoena to ENP (i.e. the effective parts of that subpoena), in each matter, be set aside; 2. that the Prosecutor pay the Defendant's costs of the NsOM; and 3. that the Court make any other orders it "thinks fit".

Day One - 6 April 2018

All four NsOM were listed before me, as List Judge, on 6 April 2018, and have been argued together, by Mr C Ireland, counsel for the Defendant, and Mr R O'Gorman-Hughes, counsel for the Prosecutor.
The Court had some difficulty with the hearing of the NsOM on that first day, largely because, for some reason, no directions had been given, prior to 6 April 2018, by either the List Judge or the Registrar, requiring that detailed grounds of challenge be particularised, and perhaps written submissions provided, in advance of the hearing.

The Defendant on Day One

Mr Ireland, being ready and anxious to proceed, relied upon: 1. the affidavit of the most relevant Council officer, its compliance co-ordinator Craig Henderson, which was dated 21 September 2017 and forms part of the Prosecution brief, together with two volumes of documents which Henderson annexed (as Exhibit CH-1 to his affidavit), all of which prosecution material was tendered by Mr Ireland, and became Exhibit D1 before me; 2. a "Defendant's bundle" of documents, which included, in the nature of a Court Book, the summonses and orders (pp1-11), and subpoenas (pp12 to 27); but also 1. an affidavit, with annexures, from the Defendant's solicitor, Todd Neal (pp28-45), dated 5 March 2018, which Mr Ireland read on the NsOM; and 2. a letter from K&C to this Court (pp46-47), dated 19 February 2018 (which became Exhibit D2), enclosing documents in response to subpoena(s) directed to it, and providing some explanatory comments (see [34] above); 1. his comprehensive primary written submissions, dated and filed that day; and 2. a large bundle of authorities
He then made extensive oral submissions.

The Prosecutor on Day One

Mr O'Gorman-Hughes, appearing for the prosecuting Council, relied, at the hearing on Day One, on an affidavit from his instructing solicitor, Carlo Zoppo, dated 4 April 2018.
Mr O'Gorman-Hughes said, in opening, that Mr Henderson had visited the subject site in November 2015, in response to a community complaint, and had been shown around by a Mr Les Glass, who informed him that he was the Defendant's brother-in-law, and that the Defendant owned that land, and had built on it a "holiday retreat" for his family (see T06.04.18 p7, LL7-30).
Mr O'Gorman-Hughes acknowledged that that evidence may be excluded at trial as hearsay, but he said (LL28-30) that "it can still be used to form a legitimate forensic purpose to guide the issue or attempt to gain further evidence by the prosecutor".
Mr Zoppo deposed to his further investigations, including the Defendant's response to a notice given to him by Council under s 119J of the EPA Act (to which I will return).
That response included production of a number of invoices and other documents.
In the context of the role played by ENP, Mr O'Gorman-Hughes said (T06.04.18 p8, LL5 to 9, and 38 to 46): ... the fact that there are invoices issued to a company which the defendant is a sole director and majority shareholder of, relating to the development of the land makes it on the cards that that company will have documents that will relate to the unauthorised development that will materially assist the prosecutor's case. ... ... so the three things, the admissions from Mr Glass, the defendant intended to use the development for a particular purpose and that the defendant was the owner, the fact that the director was a sole director of Eagle Nest Park Pty Limited and the fact that the defendant according to these documents instructed contractors to issue invoices to Eagle Nest Park and that in fact there are invoices and other documents that had been for work means that it is on the cards Eagle Nest Park has documents that are relevant and will materially assist the prosecution case.
Mr O'Gorman-Hughes also submitted that the Prosecutor relied upon K&C's role in the 2016-17 DA for an eco-tourist facility, especially in preparing the SEE, to shed some light on the Defendant's intentions in seeking that approval some months after Council had inspected "unauthorised [prior] development" on the site. He said (T06.04.18 p9, LL23-24, 33-36, and 44-47): ... they must have been told something by the defendant who engaged them about that development. ... ... they weren't engaged until January 2016 so someone must have told them it's on the cards that the defendant said to these consultants, these are the works I undertook, can you try and get consent for me. ... ... We think there will be amongst the documents that the consultant planners have evidence from the defendant that he told them what his intent was and that's clearly relevant to whether the defendant carried out the work or not.
However, Mr O'Gorman-Hughes did not make any substantive oral submissions on the challenge, on that first day, beyond what he said in opening.
He took the position (T06.04.18 p13, L48 to p19, L20): 1. that the NsOM set out no grounds for challenge, and he had come to Court prepared to respond to only such challenges to the subpoenas as he had decanted from material in Neal's affidavit (I note in this respect pars 13, 14, 15 and 22, and annexures 'A' and 'E', which included legal arguments put to the Prosecutor in correspondence); and 2. that Mr Ireland's written and oral submissions on that first day had gone well beyond assertions in that material, and the Prosecutor was entitled to procedural fairness in order to meet them.
As Mr O'Gorman-Hughes said (T06.04.18 p18, LL35-38): So in my submissions I can deal with legitimate forensic purpose but abuse of process is something that you would have thought we'd be put on notice of rather than having it raised now.
Mr Ireland countered (Tp19, LL24-32): ... to say a subpoena is an abuse of process that's also customarily another way of saying it lacks a legitimate forensic purpose or that it seeks documents of no apparent relevance. So it's really part and parcel of arguments in this territory on which the prosecutor has the onus of showing a legitimate forensic purpose to deal with issued of abuse of process. I accept that the way in which I put the abuse of process argument here relates to the invalidity of the 119J notice but there was clearly in my submission notice given of that but if the prosecutor needs further time to respond we couldn't reasonably object to that and we don't.

The Outcome and The Aftermath of Day One

In the result, I allowed Mr Ireland to complete all his oral submissions in chief, on that first day.
I then granted Mr O'Gorman-Hughes an adjournment of the hearing, and gave directions, to enable his preparation of responsive submissions.
Mr Ireland filed supplementary written submissions in chief on 9 April 2018.
Mr O'Gorman-Hughes filed his written submissions on 26 April 2018.
Mr Ireland filed submissions in reply on 30 April 2018.
The Council also procured two further affidavits from Henderson, one dated 26 April 2018, but a second one coming to the attention of both the Defendant and the Court only on 1 May 2018.

Day Two - 2 May 2018

The hearing resumed on 2 May 2018.
Mr Ireland put the Prosecutor and the Court on notice that, if both the new Henderson affidavits were to be relied upon by the Prosecutor on the NsOM, he would require Henderson for cross-examination, and would need to subpoena from Council various items of background material.
As Henderson was already committed in another court that day, the hearing of these NsOM had to be adjourned again.
In respect of the material on which the witness relied, the Prosecutor acknowledged its duty of disclosure (T02.05.18 p8, LL44-46), and counsel discussed a draft, prepared by Mr Ireland, of a subpoena addressed to Council.
Eventually, counsel agreed to negotiate informal production of a suite of documents which the Defendant would wish to be produced and examined before Mr Henderson gave his oral evidence (T02.05.18 pp7-10).
The Defendant also made an oral application (T02.05.18 p5, L49 to p6, LL2 and 47-48), pursuant to s 257F of the Criminal Procedure Act 1986, for "costs thrown away" as a consequence of the adjournment.
The Defendant's NsOM - and his oral costs application - were adjourned to 31 May 2018 (T02.05.18 p7, L16).

The Aftermath of Day Two

On 7 May 2018, the Court issued a subpoena to Council, at the request of the Defendant, and the solicitors apparently corresponded about it (Exhibit P1, item 1.2).

Day Three - 31 May 2018

The hearing resumed on 31 May 2018.
Mr O'Gorman-Hughes filed an amended outline of his submissions, provided his own separate bundle of authorities, and also tendered a letter from Council's solicitors to the Defendant's solicitor, dated 18 May 2018, attaching, "by way of informal production", in response to the subpoena of 7 May 2018, some documents to which Mr Henderson had referred in preparing his evidence (Exhibit P1).
Mr Henderson then gave some oral evidence, and was cross-examined for some time.
At the conclusion of Mr Henderson's evidence (T31.05.18 p28), Mr Ireland filed in Court a NOM seeking the costs order he had earlier sought orally, in respect of the aborted hearing on 2 May 2018. That NOM was supported by an affidavit from solicitor Katherine Edwards dated 31 May 2018, which included details of costs claimed in the sum of $8,439.20, plus counsel's fees of $3,987.50.
The Court then heard Mr O'Gorman-Hughes's oral submissions on the NsOM, and a reply from Mr Ireland, before reserving this decision.

Since Day Three

The Council was ordered to advise the Court on 8 June 2018 of its intentions regarding the Defendant's costs NOM. I subsequently granted, in chambers, an extension of that time limit to 15 June 2018.
On 15 June 2018, the solicitors for the Defendant notified the Registrar that its claim for its costs of the adjournment on 2 May 2018 had been resolved.
No details of that agreed resolution have been provided.
Accordingly, I will give no consideration in this judgment to the Defendant's NOM dated 31 May 2018 regarding costs.

E: The Structure of What Follows

I will now proceed as follows:

In Section F, I will set out the Defendant's arguments in chief, largely developed on Day One.
In Section G, I will record the Council's evidence, much of it filed in response, after Day One, to the Defendant's arguments in chief, but some of it tendered, in fact, on Day One, by the Defendant, and some also provided by Henderson under cross-examination on Day Three.
In Section H, I will set out the Prosecutor's arguments in defence of its subpoenas.
In Section I, I will summarize, so far as then remains necessary, Mr Ireland's submissions in reply.

I will then, in Section J, consider the parties' competing cases, before reaching my conclusion and orders (Section K).

F: The Defendant's Arguments in Chief

Mr Ireland has favoured the Court with three sets of written submissions in support of the Defendant's position - primary submissions filed in Court on 6 April 2018, supplementary submissions filed on 9 April 2018, and submissions in reply filed on 30 April 2018.
He also submitted two bundles of authorities, one during his opening address (T06.04.18 p10, L11), and another during his reply (T31.05.18 p54, L2).

The Defendant's principal arguments

Fundamentally, the Defendant argues that the Prosecutor, by issuing the subpoenas in question, is "fishing", in order to "find a case" against the Defendant, and doing so on the basis of third party documents, obtained in circumstances in which they should not be used for the purposes of criminal proceedings.

The s 119J notice argument

In this respect, Mr Ireland submitted (T06.04.18 p10, LL21 to 26 and 37 to 47 - emphasis added): In terms of the way in which the existence of [ENP] and its potential involvement in the carrying out of the development came to light, that was by or through the issue of a s 119J notice by the prosecutor, that we say, or the defendant says, was issued for the impermissible purpose of criminal prosecution, that not being a purpose for which s 119J may be issued under the [EPA] Act. ... ... the prosecutor has the onus of persuading your Honour that there is this legitimate forensic purpose. What the prosecutor says ... is that the forensic purpose of the [ENP] subpoena is derived from admissions made by the defendant in response to a notice issued by council pursuant to 119J ... The admissions and records produced by the defendant in response to the notice alerted council to the fact that [ENP] was involved with development. (See also T06.04.18 p16, LL39-41.)
Mr Ireland added (Tp11, L7): The same point arises in relation to the [K&C] subpoena ...
As Mr Ireland later put it (Tp18, LL8-15, referring to par 17 of his submissions): ... the fundamental question is can a prosecutor use illegal conduct, in other words the issue of a 119J notice that's not supported by the required purpose or the purpose required by s 119J and surrounding sections of the [EPA Act] as it was at the relevant time, in order to then issue subpoenas to trawl up documents the existence of which it has only been alerted to from parties the existence and potential involvement of which it has only been alerted to by this invalid and ultra vires conduct.
Section 119J (now s 9.22) was placed in the EPA Act by amendments passed by Parliament in late 2014. They received assent on 19 November 2014, and commenced on 31 July 2015, and s 119J provides: Requirement to provide information and records (1) An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose. (2) The notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished. (3) The notice may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully. (4) The person to whom any record is furnished under this section may take copies of it. (5) If any record required to be furnished is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides. (6) An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
The Defendant submits that the s 119J notices in this case were ultra vires, because (T06.04.18 p11, LL22-23) "at least a substantial purpose of the issue of this notice was to engage in criminal prosecution ...". Mr Ireland submitted (Tp11, LL26-30) that he does not "have to show that that sole purpose is this impermissible purpose", but s 119J requires that "the purpose for the issue of the notice is the exercise of the function of council under the [EPA Act], and that's, in my submission, the sole purpose or at the very least the dominant purpose ...".
Mr Ireland continued (Tp11, LL33-41 and 46-49): In my submission, the only reasonable inference available on the evidence is that either the sole or the dominant purpose for the issue of these 119J notices was not the exercise of the council function under the [EPA Act], but impermissibly to engage in criminal prosecution of my client, which is an impermissible purpose. And I say that even if your Honour were to conclude that that was only one of a number of purposes and that the exercise involved mixed purposes, on the evidence your Honour would conclude that the whole exercise has been tainted because either the sole, or perhaps the dominant purpose of the issue of the 119J was tainted by this impermissible purpose. ... [W]here an improper purpose is a substantial purpose, including in the sense that power would not have been exercised if it was not for that impermissible purpose then the whole exercise of power will be tainted by the improper purpose.
The notice issued to the Defendant on 15 December 2015 (Neal's Annexure 'C', and Exhibit D1 tabs 9 and 11) was very detailed in its specification of the documents it sought, and allowed six weeks for a response. The Defendant eventually responded on "9 May 2016" (Henderson 21 September 2017 par 25) in great detail (some 240 folios - see [199] below).
The Prosecutor was asked on 1 February 2016 to give an undertaking not to use, for the purposes of the prosecution, material it obtained in the s 119J process.
On 4 February 2016, the Prosecutor refused to give that undertaking (Exhibit CH-1, pp60-61), but the Prosecutor's solicitor acknowledged that the notice was issued "during its investigation of the alleged offences the subject of both proceedings" (Neal annexure 'B' par 11 - emphasis added).
The Defendant submits (par 5) that the laying of charges such as in this case is not a Council function under the EPA Act, and that there is no evidence here of any other enforcement action or exercise of powers under that Act (c.f. the Local Government Act 1993 - "the LG Act").
If the - or a major - purpose of the s 119J notice(s) is the criminal prosecution, the s 119J exercise is (some emphasis added): "tainted by the improper purpose: Thompson v Randwick Municipal Council [("Thompson")] (1950) 81 CLR 87. ... The proper test is whether the notices may not have been issued absent the improper purpose, and clearly they would not have been" (subs par 6). "[T]he improper purpose need not be the sole purpose ... all that's required is that the improper purpose be a substantial purpose" (T06.04.18 p12, LL20 and 37-38).
Mr Ireland says (subs pars 17-18): 17. The question is can a Prosecutor use this illegal conduct as a launching pad to then issue a subpoena seeking documents that it has been informed about through that illegality. 18. The Defendant says it cannot as (a) this would be an abuse of process and bring the administration of justice into disrepute to allow a Prosecutor to rely on its own illegal conduct in this way; (b) the material obtained cannot be adduced in evidence as it will have been obtained in consequence of an impropriety contrary to s138(1)(b) [of the Evidence Act], and as a result cannot be regarded as being sought to add to the body of relevant evidence in the proceedings; and (c) the Prosecutor cannot establish a legitimate forensic purpose without the illegally obtained material. ...
His primary submissions continued, saying (pars 20 to 22) that it is only through the admissions and records produced in response to the s 119J notice directed to the Defendant that the Prosecutor became aware: 1. that ENP existed and was involved in the project; 2. that the Defendant was its sole director; 3. that the Mansfield Family Trust was also involved (regarding a shed); and 4. that K&C was contracted to provide site plans. (See also T06.04.18 p22-23.)
The Defendant further submits (pars 23 to 28) that the Prosecutor's reliance on the notice, admitted by Council to have been issued as part of investigating criminal charges, brings into play the principles spelt out in the Zhang decision, and renders the notice ultra vires. It is not legitimate for the Prosecutor to build upon information obtained illegally. To allow reliance on such material may amount to an "abuse of process". Also, a prosecutor cannot obtain documents in this way, for the purpose of examining them to see if they might contain something relevant and/or helpful to its case - "fishing" is not permitted.

Zhang

As I have already noted ([18]), Mr Ireland places particular reliance, on behalf of the Defendant, on the Chief Judge's decision in Zhang, saying (at T06.04.18 p25, L30) that the principle arising from that case "applies directly here".
That reliance is challenged by the Council, so the Zhang decision needs to be closely examined.
In Zhang, a notice was issued, in a prosecution context, to a witness, under what was then s 118BA of the EPA Act, which relevantly provided: (1) A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters. (2) An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section. (3) An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered. (4) The place and time at which a person may be required to attend under subsection (3) is to be: (a) a place and time nominated by the person, or (b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances."
Mr Zhang was alleged to have "over-excavated" his land, i.e. gone beyond what his DC allowed.
Council officer Woodgate commenced Local Court proceedings against him, and Zhang pleaded not guilty. Before the scheduled hearing, Woodgate issued a written notice to a Mr Ferguson to attend the Council office to answer questions "about the over-excavation of [the subject land]". Ferguson was the sole director of a company which had prepared two SEEs in relation to applications for modification of the DC. The letter enclosing the notice made clear that the interview concerned Ferguson's relationship with Zhang and the land.
Zhang contended ([7]) that the Notice was "a species of contempt of court, an abuse of process, and ultra vires". The council responded ([8]): ... With respect, our client does not agree. The issuer of the Notice reasonably suspects Mr Ferguson to have knowledge of matters the subject of this prosecution and the Notice is thus properly issued under Council's functions under the EPA Act. The issuance of the Notice is neither unreasonable nor improper. It is in the interests of all parties that this matter be investigated as thoroughly as is reasonably possible. Nor can it be said, in that regard, that the issuance of the Notice is prejudicial to your client.
Zhang commenced Class 4 judicial review proceedings seeking declaratory and injunctive relief.
Meanwhile Council served its brief of evidence for the hearing in the Local Court, due to commence 4 February 2015.
The Class 4 proceedings were heard on 19-20 November 2014.
Among other things, the Chief Judge held (headnote at pp2-3): (1) The Notice is ultra vires because it was issued in aid of the pending criminal proceedings against the applicant to enable the council to exercise its function to prosecute for the offence against the EPA Act, but that function is not a function of the council under the EPA Act. (2) The function (the power) of a council to prosecute for an offence against the EPA Act or the Environmental Planning and Assessment Regulation 2000 (NSW) is not conferred by the EPA Act but rather by the [LG Act]. (3) Section 118BA of the EPA Act should not be read down so as to prevent it from being used against a person other than a defendant in pending criminal proceedings, just because the criminal proceedings have been commenced. ... (6) The use of the power under s 118BA of the EPA Act to compel a person who is not a defendant in pending criminal proceedings and who is not yet even a witness to answer questions in relation to matters the subject of the criminal proceedings does not give the council an advantage which the rules of procedure of the Local Court would otherwise deny the council. (7) The use of the power under s 118BA of the EPA Act does not impermissibly interfere with the pending criminal proceedings in the Local Court or the course of justice. ...
His Honour said (at [64] to [71] - emphasis added): 64 I consider that there is force in Mr Zhang's first statutory construction argument that the Notice is ultra vires because it was issued in aid of the pending criminal proceedings against Mr Zhang to enable the council to exercise its function to prosecute for the offence against the EPA Act, but that function is not a function of the council under the EPA Act. ... 66 The right of a council to institute a prosecution for an offence against the EPA Act or the regulations is to be found in s 14 of the Criminal Procedure Act. The power of a council to institute proceedings for an offence under any Act is in the [LG Act], being conferred either directly by ss 21, 684 and 687 of the [LG Act] or indirectly because the power is supplemental or incidental to, or consequential on, the exercise of the functions conferred on a council by or under the [LG Act] or any other Act including the EPA Act ... ... 69 The upshot is that the function (the power) of a council to prosecute for an offence against the EPA Act or the regulations is not conferred by the EPA Act but rather by the [LG Act]. The consequence is that the power under s 118BA of the EPA Act cannot be used to issue a notice to obtain information to enable a council to exercise its function to prosecute for an offence against the EPA Act because that function is not a function under the EPA Act. 70 In the case of the Notice issued by Mr Woodgate, the evidence establishes that it was issued to require Mr Ferguson to answer questions in relation to the matter the subject of, and in aid of, the pending criminal proceedings in the Local Court against Mr Zhang. That is to say, the Notice was issued to obtain information to enable the council to exercise its function to prosecute for the offence against the EPA Act. That purpose is plain from the evidence of the timing and circumstances of the issue of the Notice; the express reference to the pending criminal proceedings in the heading of the covering letter serving the Notice; and the heading and statements of the council's solicitors in their letter responding to Mr Zhang's solicitors' demand that the Notice be revoked as being in contempt of court, an abuse of process and ultra vires. The council speculated in submissions that the Notice might have been issued for some other purpose, such as to investigate whether to exercise other enforcement functions of the council, such as issuing an order under s 121B of the EPA Act. However, in the face of the evidence that the Notice was issued in aid of the pending criminal proceedings against Mr Zhang, "it is useless to speculate on what might have been": [The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333] at 346 and see also 342-343. 71 In the circumstances, therefore, the council acted ultra vires the power in s 118BA by issuing the Notice requiring Mr Ferguson to answer questions in aid of the pending criminal proceedings against Mr Zhang. The Notice should therefore be declared invalid on this ground.
His Honour concluded (at [122]-[123]): 122 I find that the Notice is ultra vires in two respects: first, the Notice was issued to enable the council to exercise its prosecutorial function in aid of the pending criminal proceedings against Mr Zhang but that function is not a function under the EPA Act, and secondly, the Notice failed to identify to the addressee the matter in relation to which the questions were to be asked. The Notice should therefore be declared invalid. 123 These errors do not, however, mean that the council cannot validly exercise the power under s 118BA to give a notice to a person other than Mr Zhang, notwithstanding that criminal proceedings are pending against Mr Zhang. It is therefore not appropriate to grant the injunctive relief sought by Mr Zhang.
As Mr Ireland noted (T06.04.18 p23, LL49-50 - emphasis mine): It's not a relevant point of distinction in terms of principle in my submission that in that case the criminal proceedings had already been commenced.
He further submitted (Tp24, LL33-48): So in terms of a principle that rendered the notice invalid, the temporal distinction between notices issued after proceedings had been commenced or beforehand, doesn't come into play as a matter of principle. Rather the question is, is the notice being used to obtain information to enable a council to exercise its function to prosecute. In my submission, in this case, it's overwhelming clear on the evidence that it was, but as I've indicated, having regard to the law of improper purpose challenges in the area of administrative law and judicial review, I don't need to demonstrate that that was the sole purpose. Although, in my submission on the evidence, your Honour would, and could so find, I only need to demonstrate that the impermissible purpose, if there were mixed purposes, was a substantial purpose. Or put another way, that the proper characterisation of events was that council was seeking the material substantially to investigate, and then commence prosecution proceedings against my client.

The Defendant raises other objections to the subpoenas

The Defendant also raises (pars 29-49, T06.04.18 pp28-32, reply subs pars 34-37, and T31.05.18 pp61-63) some additional specific objections to the subpoenas: 1. the absence of a time specification re the creation of documents sought in paragraph 1 the ENP subpoena; 2. specification of a time period outside the charge period in paragraph 2 of it; and 3. focus on an eco-tourist facility in paragraph 1, when Council does not base its case on the purpose - the charges concern either an innominate unspecified prohibited use, or a dwelling house use, and the parties dealt with an eco-tourist facility outside the charge period.
The K&C subpoena also seeks documents created after the charge period, K&C having been first engaged only after the charge period.
The Prosecutor acknowledged in a letter dated 22 February 2018 (see Neal p37, par 21), in respect of the K&C subpoena: To the extent that any documents are produced which are not relevant to the Class 5 proceedings, those documents will not be put into evidence.
The Defendant argues that the relevance, to the prosecution, of these broadly defined documents, created outside the charge period, must be explained to the Defendant and the Court.
The Defendant submitted (pars 47 and 49) that:

"The subpoenas are plainly issued by the Prosecutor in order to ascertain whether the Prosecutor has a case at all against the Defendant and to ascertain what that case might be"; and
in the absence of apparent relevance, the subpoena must be set aside: National Employers' Mutual General Association Ltd v Waind and Hill; Waind and Hill v National Employers' Mutual General Association Ltd ("Waind") [1978] 1 NSWLR 372.

Legitimate forensic purpose?

"Mere relevance" is not enough to establish a legitimate forensic purpose, and it is not proper to subpoena documents merely to determine whether they may be relevant: Attorney General (NSW) v Chidgey ("Chidgey") (2008) 182 A Crim R 536 at [59]-[60].
(In developing his arguments, Mr Ireland took the Court to a large number of authorities. Many of the older authorities on subpoenas were well summarized by Moffitt P in Waind, and relevantly, in this Court, one might refer to my judgment in Young v King (No 3) [2012] NSWLEC 42, and Craig J's judgment in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation ("Azar") [2010] NSWLEC 110. I also recently surveyed and applied the relevant authorities on setting aside subpoenas, in a civil context, in Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) [2017] NSWLEC 183.)
The Defendant submits (par 8) that the Prosecutor bears the onus of establishing that each of its subpoenas has a legitimate forensic purpose, i.e. that the documents sought have "apparent relevance to the issues in the proceedings", and that "it is 'on the cards' that [they] will materially assist the prosecutor's case": Chidgey, at [64]; and Ku-ring-gai Council v Chia ("Chia") [2018] NSWLEC 40.

Saleam

Mr Ireland relies also on R v Saleam ("Saleam 1989") (1989) 16 NSWLR 14. In that judgment (at 18C), the Court of Criminal Appeal ("CCA") restated the need for a court to be satisfied "that there is a legitimate forensic purpose for which the documents are sought" (subs par 10).
As the present context is criminal proceedings, it is appropriate to note here some more detail of that CCA decision.
The lead judgment was given by Hunt J. Carruthers and Grove JJ agreed with it, and it is worth quoting at some length.
The accused was appealing against certain convictions, and sought access to documents produced by the Commissioner of Police in response to a subpoena which Hunt J noted (at 16D) had sought: the production of every document relating to the investigation and prosecution of the offences with which the appellant and a co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at the trial.
Hunt J said (at 16G-17F - emphasis added): The terms in which the subpoena was expressed were certainly very wide. The documents sought were, however, specified with some (if perhaps insufficient) particularity, in that in effect every document in the possession of the police had to be produced. The subpoena obviously could be complied with, and it was thus not oppressive, if sufficient time were given. It was nevertheless far too widely drawn and upon its face there could have been no legitimate forensic purpose in having produced many of those documents after the trial had taken place (if, indeed, there would have been any such purpose in having them produced before the trial): Commissioner for Railways v Small [("Small")] (1938) 38 SR (NSW) 564 at 573-575; 55 WN (NSW) 215. The time for the Commissioner to complain of the width of the subpoena had, however, passed, for he had in fact been able to produce the documents. (The documents to which access was specifically objected fell within a clearly identified category, being the reports of the investigation into the allegations of perjury.) The width of the subpoena certainly on its face cast doubt upon the legitimacy of the forensic purpose for which the production was required. Again on its face, the subpoena appeared to be no more than yet another manifestation of the currently fashionable ploy of achieving, in effect, a onesided (and impermissible) discovery against the police by having a call made upon such a subpoena shortly before the trial. It also appeared to be a variation of another currently fashionable ploy of making allegations of misconduct against the investigating police officers in the hope that the subsequent investigations by the Police Internal Affairs Branch and (where appropriate) by the Ombudsman will turn up something to be used on the issue of their credit at the trial. In the present case, moreover, the issue of the subpoena after the trial had taken place, when there is no ground of appeal to which the documents could possibly relate, gave every appearance of a fishing expedition, in the sense that the appellant had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd [("Fairfax")] (1952) 72 WN (NSW) 250 at 254. However, as Brennan J observed in Alister v The Queen [("Alister")] (1984) 154 CLR 404 at 455-456, it is appropriate to adopt a more liberal approach to such matters in a criminal case. His Honour was there speaking of the exercise of a court's power to inspect documents for which a claim of public interest immunity had been made by a Crown instrumentality, to ensure that such a claim does not prevent the disclosure of an injustice suffered by an accused. In my view, such an approach is relevant also in determining whether there is a legitimate forensic purpose in having the documents produced at any stage of the criminal process, whether or not a claim of such immunity (or any other kind of privilege) is made.
Later (at 18C-D, and E/F), His Honour continued (emphasis added): In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf [Waind] at 385), and the judge's initial refusal to permit inspection should always be open to review. ... [The Court] must be satisfied that it is "on the cards" that the documents would materially assist the accused in his defence.
His Honour noted (at 19E-G) that some legal practitioners had come to interpret the High Court's reasoning in Alister as overruling the principle that there is no discovery in criminal cases, such that the practice had grown of issuing subpoenas "nakedly for the purpose only of discovery". The High Court had used the word "discovery" in Alister only in the sense of "disclosure" appropriate to criminal matters.
Mr Ireland submitted (par 10) that Saleam 1989 stands for the principles that a subpoena drawn too widely will often have no legitimate forensic purpose, and/or that one seeking a large body of documentation that will not be relevant, "even if some may turn out to have some relevance", will be set aside.

Other authorities

Mr Ireland referred the Court to many other authorities, and I shall now note some of them.
In Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board ("Samrein") (1982) 41 ALR 467; 56 ALJR 678, a strong High Court plurality, dealing with a power to acquire land, said (at 41 ALR 468-9 - emphasis mine): The critical question in the present case is whether the purposes for which the Board proposes to acquire the land are purposes of the Act. If the Board is seeking to acquire the land for an ulterior purpose, there will be an ostensible but not a real exercise of the power granted by the Act. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition, it will be an abuse of the Board's powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorized purpose ...
Their Honours added (at 470): The proper conclusion is that the Board's proposed acquisition was for the purpose of acquiring a city block on which it could erect a building in which it would provide accommodation for its own employees. The joint venture with GIO was simply a means to that end. The case is distinguishable from [Thompson], in which it was established that no attempt would have been made to resume the particular land in question if it had not been the desire of the council to make a profit from the resale of those lands and to reduce the cost of construction of the new road in that way ...
In his oral submissions in reply, Mr Ireland relied upon another land acquisition case, decided by the Supreme Court only on 1 May 2018, namely Desane Properties Pty Ltd v State of New South Wales ("Desane") [2018] NSWSC 553, in which Hammerschlag J said (at [281]-[283]): 281 A statutory power must be used only for the purposes for which it is given. In this case, the power to acquire is for the purposes of the Roads Act [1993]. The requirement to give the PAN is imposed by the [Land Acquisition (Just Terms Compensation) Amendment Act 2016]. In this case, the power to give a PAN is likewise to be exercised only for the purposes of the Roads Act. 282 If RMS' purpose in giving the PAN (as part of the process of acquiring the Property) was an ulterior one, there will be an ostensible, but not a real, exercise of the power. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition. It will be an abuse of RMS' powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose; [Samrein] at 679. 283 Whether a power is exercised for an improper purpose is a question of fact ...
As Aronson and Groves noted in the 5th edition (2013) of their text "Judicial Review of Administrative Action" (at par 5.570 on p319), there are often several purposes behind an impugned decision and the courts have been called upon to look for the "true" or "dominant purpose", and/or to observe the effect of the decision, i.e.: "whether it made no difference, or might have made a difference, or materially or substantially influenced the outcome, or was critical to the outcome."
The learned authors drew attention to a number of cases and then: "... submitted that unless there are contrary indications in the particular statute, the proper test should be whether the challenger missed a real chance because one of the decision-maker's purposes was unlawful ... It is too difficult to have a test that requires a fine calibration of the weight (substantial or dominant) that the decision-maker put on the forbidden purpose."
In Chidgey, the relevant subpoena was issued to the Commissioner of Police, in the course of committal proceedings in a drug case involving undercover police activity. The Commissioner claimed it was an abuse of process and served no forensic purpose. The Defendant claimed that the legitimate forensic purpose was assisting the defence in challenging admissibility of evidence on grounds that it was improperly or illegally obtained.
The CCA referred (at [58]-[62]) to cases such as Small, and Carroll v Attorney General (NSW) ("Carroll") (1993) 70 A Crim R 162, and applied (at [64]) a later iteration of R v Saleam, reported at [1999] NSWCCA 86 ("Saleam 1999"), which endorsed what had been stated by the CCA (per Hunt J) in Saleam 1989 (see [116]ff above). (The Defendant in the present case also referred to Small and Carroll, as well as Saleam 1989, and I have reviewed all the cited authorities.)
Cases like Small (at 573-5) have long recognised that subpoenas may be addressed to "strangers", but they "must specify with reasonable particularity the documents which are required to be produced". Normally they would be produced to the Court and not directly to the parties. If issued to a party, a subpoena is no substitute for discovery, interrogatories, or the seeking and obtaining of further and better particulars.
Mr Ireland's reply submissions (par 34) refer to "the principle in Carroll", but the headnote does not identify by a specific statement any one particular principle to be drawn from that case, albeit that the judgments affirm a general proscription of "fishing", "trawling", and seeking documents on the basis of no more than "speculation" as to what might be revealed. (See also Saleam 1989, per Hunt J, in this latter respect.)
In fairness to the Defendant, I should examine Carroll in some detail.

Carroll

The plaintiff sought a review of warrants issued under the NSW Listening Devices Act 1984, contending that the issuing judges had no, or no proper, supporting material before them. He sought access to the police affidavits relied upon. For that purpose the District Court issued subpoenas to the Commissioner of Police. The Commissioner successfully claimed public interest immunity, and the plaintiff sought relief from the Supreme Court. The proceedings were urgently referred to the Court of Appeal, and were heard by Kirby ACJ, Mahoney AP, and Hunt AJA. A similar challenge was simultaneously before the Federal Court in concurrent proceedings.
The matter concerned more than the subpoenas. As recorded in the head note (at 162), the Court had to determine also whether the Supreme Court can review a judge's decision to issue a warrant; if so, can a single judge exercise the power, or only the Court of Appeal; and whether the Court should make declarations as sought in the summons, namely that the warrants were "defective and invalid ... issued contrary to law and of no legal effect". It was unstated in the summons, but inferred by the Court of Appeal from oral argument, that the plaintiff was seeking an order "quashing the warrants or otherwise setting them aside" (at 166).
Among the contentions of the Commissioner was the argument that the plaintiff's application for access to the police affidavits was (p 168) "nothing less than a 'fishing expedition', with no legitimate forensic purpose, to which [the Court of Appeal] would not lend its authority ...".
The decision of the Court of Appeal, by majority, was that the affidavits should not be made available for inspection by the plaintiff, and the headnote states that the Court applied Small, Alister, and Saleam 1989, as well as Maddison v Goldrick ("Goldrick") [1976] 1 NSWLR 651.
The three judges took quite individual approaches, which I need to abstract now at regrettable length.
Kirby ACJ, who dissented from the other two judges' decision, said (at 169-170 - emphasis added): This brings me to the argument that the summons represents a mere "fishing expedition" on the part of the plaintiff. Indeed, at one stage, it was suggested that it involved the pursuit of an ulterior purpose. This was the gaining of access to affidavits earlier sworn by police for the purpose of arming those representing the plaintiff at the trial with material with which to cross-examine police witnesses in order to suggest that they had acted in some improper, reprehensible or even illegal way in obtaining the damaging conversation implicating the plaintiff in the conspiracy charged. The plaintiff urged that he had a legitimate forensic purpose to secure access to the police affidavits. That purpose was to establish (or strengthen) the case for attacking the validity of the warrants, based otherwise only upon the transcripts of the police de-briefings. The reference to the need for a legitimate forensic purpose can be traced through a series of cases in which this Court has resisted the misuse of subpoenas to permit parties to civil or criminal proceedings to embark upon "a fishing expedition" in the hope that something might possibly turn up that would be of utility in the trial. The need for precision in the drafting of subpoenas was emphasised in [Small] at 573f. The distinction between fishing in a pool for fish "of a particular kind" and dragging the pool "in order to find out whether there were any fish there or not" was made in [Fairfax] at 254. A difficulty often arises in identifying with precision the documents to which access is sought and the purpose of such access: see [Goldrick] at 666. In the view of Brennan J in [Alister], at 456, it is appropriate to adopt a more liberal approach to such matters in a criminal case, in order to ensure, so far as possible, against the risk of injustice to an accused person. Where a claim for public interest immunity is made, different views have been expressed concerning the circumstances in which access will be permitted. In the opinion of Gibbs CJ in Alister (at 414) a mere fishing expedition will not be allowed. But access may be granted if it appears to be "on the cards" that the documents would materially assist the accused. This is a somewhat more relaxed criterion than the one suggested by Lord Fraser in Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 436 (HL). His Lordship considered that there had to be "definite grounds for expecting to find material of real importance" to the party seeking disclosure.
His Honour then dealt (at 170) with Saleam 1989 (especially the passage quoted at [120] above, from p18), and accepted and applied Hunt J's criteria. His Honour said (at 170 - emphasis added): ... I am far from convinced that the plaintiff has no legitimate forensic purpose to press his application for access to the police affidavits. Clearly, it is to the forensic advantage of the plaintiff to exclude the evidence obtained pursuant to the warrants issued under the Listening Devices Act. In the absence of a lawful warrant, the recording of a private conversation by the use of a listening device, in contravention of s 5 of the Act, would render evidence of that conversation inadmissible in any criminal proceedings: see s 13(1). None of the exceptions provided by s 13(2) to this consequence applies in this case. ... If, as appears to be conceded, much, if not all, of the prosecution case against the plaintiff rests upon the evidence of private conversations secured (relevantly) by use of a listening device, the exclusion of such evidence, by an attack on the lawfulness of the warrant is, if admissible, not only a legitimate forensic purpose but an entirely justifiable one. Here, there was no difficulty in identifying the documents sought. There was no suggestion that the subpoena was expressed in terms too wide.
Kirby ACJ concluded (at 180): Being unable affirmatively to conclude that the plaintiff has made good his attack on the validity of the warrants, without the affidavits which he sought, his application must be dismissed with costs.
Mahoney AP said (at 181 - emphasis added): Where documents are subpoenaed in a proceeding, and no objection is taken to their production to the court, it does not follow that the parties subpoenaing them have the right to have them for inspection. The documents are produced to the court. If objection is taken to the inspection of them by the parties subpoenaing them, it must appear, to put the matter generally, that the documents are relevant to an issue for determination by the court in the proceeding. There is a distinction between a subpoena which requires production of documents from a party in a proceeding and one which requires production of documents from a third party. To an extent, the court will allow to a party subpoenaing documents a somewhat broader latitude in obtaining for inspection documents from a third party which, being from a third party, could not have been obtained on discovery or otherwise in the proceeding: see [Small] at 573 ... But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.
His Honour continued (at 182-183 - emphasis added): To have access to the subpoenaed document, the party must show or it must appear that the document is relevant to the issue for decision. But mere relevance is not enough: thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: "The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them." In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case ... prima facie the documents are relevant to the issue to be decided ... But, in my opinion, it is not sufficient for a party subpoenaing the document to say "the document is relevant because, if it does anything, it establishes the case against me". He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: "I wish to see the document to see if it may assist my case." That, in my opinion, is not sufficient. If such affidavits be not produced and if consequently they be not in evidence, then the only evidence in support of the claim for a declaration is the "de-briefing" documents and material associated with them. Mr Horler QC suggested that there was in those documents a basis for the conclusion that the warrants had been obtained mala fide or without the necessary evidence. It is sufficient to say that I do not agree with that submission. Those documents were not the only documents to which the officers and the court could have had reference in determining this issue. There may have been other evidence to support the court's "satisfaction" within s 16(1). But, however that be, I would not find, on the basis of such material alone or with the other documents tendered, that there was mala fides or that the relevant material did not exist. Upon these grounds I would dismiss the summons. Having arrived at this conclusion, it is not necessary for me to express a concluded view upon the question whether it is open to an accused person against whom evidence obtained in this way is proposed to be tendered to object successfully to the tender of it upon the ground that it was obtained mala fide or as part of a conspiracy to pervert the course of justice in his trial and/or that the warrants obtained under s 16 were obtained as part of such an activity. There are some circumstances in which, legislation apart, evidence improperly or illegally obtained may be excluded by a discretionary ruling of the judge at a trial even though the evidence is in terms both relevant and probative: see generally Bunning v Cross (1978) 141 CLR 54 at 72 et seq. ... [T]he validity of the warrant, if relevant, would simply not be determinative of the question whether, by a discretionary ruling, the evidence should be excluded.
Mahoney AP concluded (at 184 - emphasis added): I have referred to these matters because they have been raised by what has been said during argument in this proceeding. However, I do not express any concluded view in relation to them because, as I have said, assuming such matters in favour of the plaintiff, he has not in the present proceeding adduced evidence to establish a case warranting the making of the orders he seeks. Since these reasons were prepared, I have had the opportunity of reading, in a draft form, the reasons for judgment being prepared by Kirby ACJ. His Honour's observations raise large questions: I do not disagree with his view of the importance of them. I have not dealt with them because they are not necessary for the decision of this proceeding and because, in my respectful opinion, the pendency of this trial makes it desirable that the waters be not muddied by observations made outside the confines - and the evidence - of that trial. As I have indicated, the fact that this proceeding fails does not mean that there is an injustice which cannot be remedied. If the evidence obtained by the listening devices be the result of mala fides or if it be otherwise within the scope of the abuse dealt with by Bunning v Cross, that can be raised and dealt with at the trial. The evidence can then be dealt with - and admitted or rejected - not according to the technicalities of the Listening Devices Act, but according to the substantial merits of the matter.
Hunt AJA, who joined Mahoney AP in the 2:1 majority, said (at 185-186 - emphasis added): The principal issue which was debated during the hearing, and which was (by majority) decided against the plaintiff, was his application for access to the affidavits which were before the various judges who issued the warrants and which had been produced to this Court on subpoena by the third defendant (the Commissioner of Police). Objection was taken by the defendant to such access being granted upon the basis that the plaintiff was conducting a fishing expedition in the sense that, as he otherwise had no evidence which would support his claim that the warrants had been issued unlawfully, he wanted to trawl through the affidavits in the hope of finding in them some evidence which would assist his challenge: ... The plaintiff, however, asserted a legitimate forensic purpose in having access to the affidavits produced on subpoena ... in that it was "on the cards" that they would materially assist him in his application: [Saleam 1989] at 409, adopting the test applied in claims of public interest immunity as stated by Gibbs CJ in Alister at 414. The plaintiff tendered the transcripts of "de-briefing" sessions conducted between the police officers who had sought the listening device warrants and their informants in order, it was said, to demonstrate either that those officers could have had no honest suspicion or belief that a prescribed offence had been, was about to be or was likely to be committed or that the judges who issued the warrants could not have been satisfied that there were reasonable grounds for that suspicion or belief: .... It is true that some of the information conveyed by the informants to the police was of a fantastic nature. Kirby ACJ has referred to that information. But reference to the transcripts themselves reveals that there is also a clear message conveyed by the informants that they took seriously the intentions of the alleged conspirators in relation to the basic elements of the conspiracy, and there is shown to have been discovered some measure of corroboration that they had at least access to certain of the means by which the conspiracy was to be carried out. It would, in my respectful view, be wrong for this Court too readily to accept any argument by the plaintiff that the proposed conspiracy was so fantastic that no honest suspicion or belief could have been held by the police in the likelihood that such a conspiracy had been formed or was likely to be formed in the future. I accept that the concept of privacy which is protected by the Listening Devices Act is of grave importance, but I do not accept that its existence should distort the usual process of fact finding. A suspicion or a belief may honestly be held notwithstanding that others would not hold it based upon the same material, and any process of review which may be available would not be by way of rehearing. It would require a very substantial case before the findings of the judges which justified the issue of the warrants could be set aside. Something more than has been shown must be demonstrated before it could be said that it was "on the cards" that such assistance would be forthcoming from the affidavits which were before the judges. It should be emphasised that the prescribed offence was a conspiracy, and not the substantive crime which was the subject of the conspiracy, and the fact that there obviously must be some scepticism that such a crime could successfully be carried out does not mean that there should be the same degree of scepticism concerning the likelihood that a conspiracy was likely to be formed in order to carry out that crime. ... I did not accept that the material put forward by the plaintiff established that it was "on the cards" that the affidavits before the judges would assist him in his application. It was by reason of such absence of any legitimate forensic purpose on the part of the plaintiff that I agreed in the majority decision of the Court to deny him access to the affidavits which were before the various judges who issued the warrants under challenge. There was no other evidence before the Court to support the plaintiff's challenge to either the honesty of the suspicion or belief of the applicants for the warrants or the reasonableness of the grounds for that belief which had been accepted by the various judges. The plaintiff also challenged the warrants upon the basis that the offences in relation to which that suspicion or belief was held were not prescribed offences within the meaning of the Listening Devices Act. The relevant offence here is not, of course, that with which the plaintiff was ultimately charged. Evidence obtained pursuant to a warrant issued upon the basis of a suspicion or a belief that one offence was likely to be committed is admissible to prove any other offence which may be disclosed by that evidence.
In Wingecarribee Shire Council v O'Shanassy (No 2) ("O'Shanassy") [2014] NSWLEC 32, Pepper J surveyed the authorities and concluded (at [17] - emphasis added): In summary, therefore, the question for determination is whether the documents sought in the subpoenas materially assists on an identified issue in the criminal proceedings, or whether there is a reasonable basis beyond speculation that the documents will assist?
In R v Ali Tastan (1994) 75 A Crim R 498, Barr AJ stated (at 504), that the Court has a "duty" to require the party issuing the subpoena "to identify expressly and precisely the legitimate forensic purpose", which (at 505-6) will exist "if it appears to be 'on the cards' that the documents will materially assist" the issuing party, and not if all that party is doing is "trying to get hold of the documents to see whether they may assist him at all in his case".
Mr Ireland submitted (T06.04.18 p35, LL28 to 37 and 44-48 - emphasis added): The test is not whether the material would materially assist for example the prosecutor dealing with arguments that the defendants may put and of course the prosecutor has no knowledge of the defendant's case at the present point in time but it must materially assist the prosecution's case. It's not simply enough that the material be apparently relevant to issues in the case but it must materially assist the person at whose request the subpoena is issued. And it's not sufficient for the party to simply seek to get hold of the documents to see whether they may assist him at all in his case ... ... ... the parties simply can't seek documents to ascertain whether some of them may assist in his case and it's not sufficient for a party subpoenaing a document to say the document is relevant because if it does anything, it establishes the case against me.
In Crane v Insurance Australia Limited trading as NRMA Insurance [2014] NSWDC 218, Gibson DCJ dealt with breadth - "all documents" - and trespass into the field of discovery. Her Honour said (at [14]): Neither the opponent, nor the court, should be obliged to get out a red pencil to cross through, or read down, the terms of the subpoena to endeavour to identify what is really being sought. The only course is for such subpoenae is for them to be set aside.
Her Honour noted ([18]): that "[d]ifficult issues may arise if the issuing party has a legitimate forensic purpose in addition to a forensic purpose that is not legitimate".
In Lowery v Insurance Australia Ltd [2015] NSWCA 303, Basten JA insisted that subpoenas which are "too broad" should be set aside: "It is not the function of the Court to redraft [them]" (at [25]).

Rogers

In Rogers v The Queen ("Rogers") (1994) 181 CLR 251, the prosecution sought to rely, in a 1989 trial, upon admissions by the accused in three of his four records of interview ("ROI"), but not the third of them. The trial judge rejected the tender on the ground that the records were not made voluntarily. The accused was convicted on two counts and acquitted on two others. In 1992, he was indicted on eight further counts, and the Prosecutor sought to rely on the fourth ROI on 6 of the counts and on the third ROI on the fourth count.
Three of five High Court judges (Mason CJ, Deane and Gaudron JJ) held that such a tender of the RsOI would be an abuse of process, but Brennan and McHugh JJ dissented. Mr Ireland referred to a number of the judgments delivered on both sides of the argument. (Footnotes have been omitted, and emphasis added.)
Mason CJ discussed (at 255-256) the fact that the concept of "abuse of process" was not confined to circumstances where the moving party seeks to achieve "some foreign or ulterior object". His Honour said (at 255): ... it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process. Williams v Spautz [(1992) 174 CLR 509] is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression ... In Walton v Gardiner (1993 177 CLR 378, at 395.) it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. ...
He added (at 256): ... there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
Deane and Gaudron JJ said (at 290): Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant's forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites "the scandal of conflicting decisions". And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of "fresh evidence" or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness. The course proposed by the prosecution amounts to an abuse of process.
Brennan J said (at 270): There is no abuse of process in the bona fide prosecution of a person for a criminal offence ... . The tender of evidence that is probative of the offence charged is not an abuse of process merely because its admissibility is challenged. If the evidence is rejected, the trial simply proceeds without it. It may be that the launching of a prosecution without any admissible evidence to support it would, dependent on the circumstances, warrant an inference that the prosecution is launched for some ulterior and improper purpose. If that were so, a stay to prevent an abuse of process might be called for ... . But that is not the present case. Here the trial should proceed to its conclusion, the objection by Rogers to the admissibility of the records of interview being upheld.
McHugh J said (at 286): Inherent in every court of justice is the power to prevent its procedures being abused. ... Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. ... In Walton v. Gardiner ((1992) (sic - (1993)) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process "extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".
His Honour later noted (at 290-291) that "the prospect of inconsistency between a ruling and a prior ruling is not enough to constitute an abuse of process. Even the fact that a ruling or decision in one case may inferentially lead to a conclusion that a ruling or decision in an earlier case was wrong does not mean that it is an abuse of process to ask a court to make the ruling or give the decision". He held (at 293-294) that the tender of either or both of the third and fourth RsOI would not be an abuse of process.
As Mr Ireland noted (reply subs par 14) in respect of Rogers: Crucially, the High Court found that the trial proceedings should not have been permanently stayed, and that the trial judge in the District Court was correct in not staying the second trial, but that a ruling should have been made by him in advance of the trial that the prosecution was not to be allowed to rely at trial on the impugned records of interview.
McHugh J's comments in Rogers were taken up by the plurality of the High Court (Gleeson CJ, Gummow, Hayne and Crennan JJ) in Batistatos v Roads and Traffic Authority (NSW) ("Batistatos") (2006) 226 CLR 256; [2006] HCA 27, at [15], along with comments made by Gaudron J, in Ridgeway v The Queen ("Ridgeway") (1995) 184 CLR 19, at 74-75, which included the following (citations omitted, and emphasis added): Abuse of process cannot be restricted to 'defined and closed categories' ... because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case ... That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose ... and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' ... or 'productive of serious and unjustified trouble and harassment.
The plurality in Batistatos added (at [19]), to both the McHugh J and Gaudron J quotes, the following: To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious ... Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.

G: The Council's Evidence

The Council's key witness on the NsOM is Craig Henderson, the first of whose three affidavits, together with its two folders of annexures (Exhibit D1), forms the basis of Council's prosecutions.
That material was filed by Council with the two summonses on 21 September 2017, but it was then tendered before me, but by the Defendant, on Day One, in support of his NsOM.
The hearing of those NsOM was then adjourned, as earlier noted ([53]), so that some additional evidence could be filed by the Prosecutor in support of its position on the challenged subpoenas.
The Prosecutor had already read, on Day One, the affidavit filed by its solicitor Carlo Zoppo, sworn on 4 April 2018. Among the annexures to Zoppo's affidavit (at fols 33 to 37) were letters exchanged between the parties' solicitors on 22 February 2018.
The Defendant's solicitor, Todd Neal, wrote to Zoppo, outlining the positions taken by Mansfield and by ENP (for which company he also acts), regarding the now-challenged subpoenas directed to both ENP and K&C.
Zoppo replied that same day, on Council's behalf.
In respect of the alleged lack of any legitimate forensic purpose in regard to the seeking of some of the documents sought from ENP, Zoppo said in his letter (pars 10 to 13, emphasis added): 10 With respect, and having regard to the two part test enunciated by Beazley JA in [Chidgey] we do not agree that the above items in the subpoena lack a forensic purpose. 11 The forensic purpose of the above requested items is derived from admissions made by the Defendant in response to a notice issued by Council pursuant to s119J of the [EPA Act] during its investigation of the alleged offences the subject of both proceedings. 12 The admissions and records produced by the Defendant in response to the notice alerted Council to the fact that [ENP] was involved in the development and as the Defendant is the sole director and secretary of that company, and its majority shareholder, Council considers it likely that the company will have further documents which disclose that the Defendant (through the company) directed third parties to carry out the development. 13 In this sense, the Council's subpoena is not a 'fishing exercise' and it is 'on the cards' that the documents sought will materially assist the Prosecutor's case as they will provide documentary evidence regarding the development as set out in the point 1 of the subpoena.
In respect of K&C, Zoppo said (fol 37, pars 21-22 of the letter): 21 To the extent that any documents are produced which are not relevant to the Class 5 proceedings, those documents will not be put into evidence. This however is not a sufficient reason for a general access order not to be made. 22 Council understands that these documents have been produced to the Court and we will be seeking general uplift access orders in respect of them as previously proposed.
Mr Ireland noted (reply subs 30 April 2018, par 19) that even the later evidence presented by Council did not contradict what was said in paragraphs 11 and 12 of Zoppo's letter of 22 February 2018, as quoted (and emphasised) by me, in [170] above.
Mr O'Gorman-Hughes's purpose in supplementing the evidence available to the Court, from the Council, was (T02.05.18 p2, LL2-5): ... to establish that even if the defendant is successful in arguing that the subject 119J notices are invalid, that that wasn't the only way that the council had of finding out that Eagle Nest Park was in fact involved in the unlawful development.
The s 119J notices were issued while Henderson, as the relevant Council officer, was "still investigating" a public complaint about the works, and had "a number of options on the table" (my emphasis), including class 4 proceedings and/or a class 5 prosecution (Tp2, LL13-16).
Mr O'Gorman-Hughes noted, in regard to Henderson (Tp2, LL18-26): Indeed, the decision to commence these proceedings was only made well over a year later after the investigation had been completed and after the council had granted consent for the subject development. That being the case there was no need to commence class 4 proceedings because the development had been approved, effectively. His evidence is that had it not been approved he would have instructed the lawyers to commence class 4 proceedings, and not a prosecution as he considered the costs of removing the unlawfully constructed works would have been an adequate punishment. So that goes to the purpose for which the order was issued. and later (Tp5, LL25-29): ... we know from what we've said that even if they're unsuccessful on the subpoena application, there will be an objection to evidence on the first day of the hearing and he'll be in the witness box then giving evidence and being cross-examined if that's the approach that the defendant wants to take.
The supplementary evidence from Henderson comprises his two further affidavits, some documentary material (Exhibit P1), and, ultimately, his oral evidence on Day Three, which ranged across all of this written material.
The issue for Henderson's evidence is the purpose for which he issued the relevant s 119J notice to the Defendant (T31.05.18 p5, LL24-25 and 48-49).
I will now examine all his documentary evidence, in the order in which it came before the Court, on these NsOM. I will supplement it, where necessary and appropriate, from the transcript of his oral evidence.

Henderson prior to Day One

In the substantive proceedings, Henderson's affidavit of 21 September 2017, and its annexures (Exhibit D1 before me), describe his role and background at the Council since joining it in May 2010.
He deposes (par 5) that Council received a complaint on 23 September 2015 about possible illegal development on the subject land. The complaint was recorded by Council in these terms (Exhibit CH-1, tab 2 - emphasis added): Resident 0411 049 217 called but would not provide any personal details. He adv had sent an anonymous email through to council previously advising that owner of Eagle Nest Park PL had built a shed without council approval. He adv is basically a house as has two showers and two toilets, a septic and people are always living there. He could not advise when email was sent and found no record of CRM though address provided. He req we follow up. Thank you.
Henderson, speaking for the Council, notes (par 6) that date as the first time any evidence of the alleged offences committed by the Defendant came to notice. He did not himself take the telephone complaint, but it was quickly referred to him, and four or five other relevant officers, electronically, because of "the potential commission of offences" (T31.05.18 p7, L31-p8, L5, and p9, L39-p10, L4).
As the wording used by Henderson in paragraph 6 of that first affidavit was heavily relied upon by the Defendant, I will set it out in full (emphasis mine): I have reviewed the records of the Council and understand based on that review that the complaint received on 23 September 2015 was the first time at which evidence of the offences alleged to have been committed by the Defendant came to the attention of a Council investigation officer.
Exhibit CH-1 to the affidavit contains many relevant documents in support of Henderson's statements about his investigation - title search; zoning maps; failure of Council's searches to find any "record of any correspondence or [DC] authorising the alleged development"; aerial images; inspection photographs; correspondence; and notices.
Although I found Henderson to be an honest and frank witness, who attempted to co-operate with the Court, he was unable to pinpoint some particular dates, regarding either documents or events (e.g. Tp6, L28, p8, L15, or p20, L13), and also conceded (Tp20, LL28-29) that his diary records are not always "as full as [they] could be".
Henderson and fellow Council officer Kate Shelton attended the property on 30 November 2015, and were shown around by Les Glass, who informed him that he was the Defendant's brother-in-law (par 13). He deposes to their conversation (par 14), to his observation of the works (par 15), to a conversation with the Defendant later that day (par 17), and to subsequent correspondence between Council and the Defendant (and Mr Mantei on his behalf) (pars 18ff).
Glass told Henderson that the works on site were (for) "a holiday retreat for [the Defendant's] family" (par 14), and the Defendant also used that characterisation (par 17).
In Henderson's conversation with the Defendant on 30 November 2015, the Defendant said he was not aware that he needed approval for the works. Henderson told him to stop work, and not to use the works "for habitable purposes" (T31.05.18 p10, LL33-36).
The Defendant offered to "get whatever approval you need me to get".
In an email to the Defendant later that day (4:05pm), confirming that discussion, Henderson said, inter alia (tab 7 - emphasis added): It is clear that the works require development consent, and a review of Council's records failed to indicate any development applications. As I have discussed with you on the phone today, Council intends to undertake further investigations, and will require further information from you during the course of the investigation. In the meantime, as discussed I request that all work cease at the premises, and that the buildings at the premises not be used for purposes that require approval/consent until the investigation is complete. You told me that you have ceased all works, and that Mr Glass would be leaving the premises today. You also told me that you understood that the premises could not be used for habitation until approval/consent is granted, and you acknowledged that this may impact on your intended family gathering at the premises at Christmas. I note that you intend to engage a consultant immediately, and you will instruct them to contact me as soon as possible. Please don't hesitate to contact me to discuss.
Henderson told the Court (T31.05.18 p11, LL24-26) that he had, by 4:05pm on 30 November 2015, "formed the view that it was obviously beyond exempt development, it was something that would have needed some form of approval".
I asked Henderson some questions (on 31 May 2018) about the time lapse between complaint and inspection, and this evidence was given (T31.05.18 p27, LL1-8): Q. ... Did nothing happen to the complaint between September and November? A. Other than our desktop searches, no we have over 150 outstanding investigations it takes us time to get through it. Q. No criticism was intended, it's just a gap in the timeframe? A. Yeah unfortunately some jobs go even longer than that before we get to them.
On 15 December 2015, Henderson issued to the Defendant a s 119J notice to provide information or records (tab 9). He confirmed to the Court (LL44-45) that he made the decision to issue it, and that the "offending" development was "significant" (Tp13, LL18-20), such that Council would likely do more than issue a notice, e.g. take Class 4 or Class 5 proceedings (Tp13, LL22-48).
Henderson concedes (Tpp13-14) that there is little documentation, especially in Exhibit P1, or among all the annexures to his affidavits, to evidence Council's consideration of such options. He also noted (Tp15, LL36-37) that the Council's processes were complicated by the then pending DA.
On 26 January 2016, Mantei sought an extension of time to comply with the notice (par 21, and tab 10, fol 58).
Shelton granted the extension (par 22).
Mantei wrote again on 1 February 2016 (par 23, and tab 10, fol 60), saying, inter alia (emphasis added): Before Mr Mansfield provides the information and records set out in your letter, can you please provide a site plan of lot 101 DP 754444 with annotations identifying where each of the items listed in paragraph 2 of your letter is located on the lot. Lot 101 is a large property, approximately 240 ha in area. This plan is required so that there is no doubt as to the location on site of each of the items of concern. Can you also please provide an assurance that the records and information provided will not be used in any criminal prosecution against Mr Mansfield or any person or entity identified in the records and information. Your authority to require information and records identified in the letter is limited to information or records in connection with an investigation purpose. An investigation purpose is defined in sections 119A and 119C of the [EPA Act] as the purpose of enabling a Council to exercise its functions under the [EPA Act]. The criminal prosecution of individuals for an offence against the [EPA Act] is not a function of a council under that Act. (Mantei footnoted a reference to Zhang)
Shelton, acting in Henderson's position, presumably in his absence (Tp12, LL27-29), responded on 4 February 2016 (par 24, and fol 61), providing a site plan, and saying, inter alia (emphasis added): 3 The Council is in the early stages of its investigation to determine whether development has been carried out in accordance with the [EPA Act]. 4 Council is not prepared nor required to provide any assurance regarding the use of information and records that may be provided by your client in response to the s119J Notice. 5 The decision in [Zhang] to which you refer is not authority for the proposition that a council is required to provide the assurance that is sought, nor that a Council is prevented from using information and records lawfully obtained for an investigative purpose in subsequent criminal prosecution proceedings.
Henderson has "no disagreement with" Shelton's approach (Tp12, LL42-46), and agreed (Tp13, LL3-13) that "it was [then] still a possibility" that criminal proceedings might be taken.
Henderson deposed (par 25, and Tp16, L9) that the Defendant responded to the notice "on 9 May 2016" (tab11 - see [86] above). (That date was neither confirmed nor rejected in other evidence, but Henderson did tell the Court (at Tp16, L2) that he could not "recall the date".)
However, he went on to depose (par 26) to having issued, "on 13 April 2016", seven further notices (tab 12) to "contractors identified in the Defendant's response as having undertaken work on the Property on the Defendant's behalf". He received five responses (par 27, and tabs 13 to 17), but instructed Council's solicitor (Zoppo) on 20 June 2016 to follow up inadequate responses (par 28, and tab 18). Further responses were received, and some further follow-up occurred (pars 29-32, and 34-35, and tabs 19-22, and 24).
Henderson deposed (at 33): 33 On 7 September 2016, the Defendant lodged with Council a [DA] for an eco-tourism facility (DA2016/700), including approval for the works already carried out on the Property. ... [See tab 23.]
The SEE submitted with the DA says (see tab 23, Sec 1.1 at fol 549 - emphasis added): This [SEE] has been prepared for and on behalf of Mr & Mrs P&H Mansfield for the purposes of seeking consent for an eco-tourist facility and associated structures upon Lots 100 and 101 in DP754444, located on Ocean Drive in Grants Beach. Works were undertaken on-site without consent during 2015 and included numerous built structures including a guest room, bunk house, shed, water tanks and large concrete slab for a future rural shed. The works were completed in the central portion of the site on an elevated and cleared portion of the site approximately 1,300m from Ocean Drive. ... All of the matters raised by Council have been addressed within the body of this report ...
Sections 2.4 and 2.5 (fols 554-555) record (emphasis added): Building works were undertaken on-site without consent during 2014 and 2015 and included numerous built structures including a guest room, bunk house, shed, water tanks and large concrete slab for a future rural shed (granted under DA2016/411 on 11 August 2016). ... ... All of the above works have been carried out on-site without consent and this application seeks consent for all of the above works as well as some additional features including [a swimming pool, additional sleeping area, and works addressing BCA issues]. ... A pre-lodgement meeting was undertaken with Council on 12 April 2016 with respect to the proposed development. It is however, noted that the pre-lodgement application package presented to Council defined the existing structures as part of a dwelling house. Council stated at the meeting that as a result of the '...configuration and components of the buildings, the development is best characterised as tourist and visitor accommodation'. The application was therefore amended to the proposed eco-tourist facility. (c.f. characterisations recorded in [186] above)
Henderson further deposed (emphasis added) 36 On 24 May 2017, DA2016/700 for an eco-tourism facility was approved by Council. [Council's Notice of Determination, and conditions, are at tab 25.] 37 On 3 August 2017 I sent a show cause letter to the Defendant. [See tab 26.] 38 On 14 August 2017 the Defendant responded to the show cause letter by email. [See tab 27.]
The "show cause" letter of 3 August 2017 (Tab 26, fol 618) said (emphasis added): I refer to our previous discussions and correspondence, including my Notice to Provide information dated 15 December 2015. Council has continued its investigations into the alleged development without consent at the above address. We have spoken with your contactors and obtained information from them regarding the works. I note that a Development Application (2016/700) has been submitted to cover the use of the facilities erected, as well as further works yet to be carried out. Further, I note that a Modification to the DA is also being assessed by Council. Notwithstanding the above, your response to my Notice for information indicates that you directed and paid the contractors to undertake the significant works completed prior to a Development Application being lodged. Moreover, these works have been carried out without development consent where development consent is required. This constitutes a breach of Section 76(A) of the [EPA Act]. Council is now considering commencing criminal proceedings against you in the Land and Environment Court. Accordingly, you are given 10 days from the date of this letter to show cause as to why proceedings should not be commenced without further notice. ...
The Defendant's response (tab 27, fol 619) included the following: ... Leading into December 2015 the desire to fulfil the continuation of the family tradition led to many errors of judgement of how I went about this, which I have many regrets and [am] extremely remorseful. At no time was the development commercially driven, it was all about the family tradition. I have lost many nights of sleep over the past 20 months and put my energies into trying to rectify and correct my mistakes. It has had a massive emotional impact on myself, my family and others I wrongfully involved, a burden I rightfully carry. Explaining to my kids why we can't holiday at Bonny Hills for the past few years has been a humbling and confronting experience. Since your site visit in November 2015, I have set about working with professional consultants and the Council Planning department to submit and obtain approval for all the relevant development and building consents. During this process I have realised just how important the 600 acres I own is to the local wildlife, environment and the broader community to preserve and protect. Especially as an important corridor for Koalas. We prepared lodged and had approved a Koala Plan of Management by Council and the NSW Department of Planning and Environment. We also discussed and happy to be a site where sick, injured or displaced Koala's could be released. The DA 2016/700 approved on 24th May 2017 was for an Eco Tourism Facility, vindicating (sic) the buildings have very limited footprint impact on the environment, in current form or in the future. ...

Additional evidence obtained from Henderson, post Day One

As described above ([57]), subsequent to Mr Ireland's tender of the above "Henderson material", and the presentation of the Defendant's primary submissions on the NsOM, the Council filed two further affidavits by Henderson.
One dated 26 April 2018 was read on 2 May 2018, and one dated 1 May 2018 was read on 31 May 2018, the date upon which Henderson was thoroughly cross-examined on all his written evidence.

Henderson's second affidavit

In his affidavit of 26 April 2018, Henderson deposed to becoming aware, "about December 2017", of a newspaper article about "'ENP', where the Defendant was featured and quoted discussing the development as an "eco-tourism resort'". He annexed the text of the article, which would appear to be dated "Dec 14 2017 - 2.00pm".
He also deposed to searching the internet on 23 April 2018 for, inter alia, "Paul Mansfield Grants Beach", and he described and attached the outcomes - the material would appear to post-date the 24 May 2017 approval, and completion of the development, and to depict the Defendant admitting he was instrumental in the development. 'ENP' appeared as the business name under which the development is advertised - that business name is owned by the company ENP, of which the Defendant is sole director (ASIC search at Annexure G).
Henderson was cross-examined about this evidence on 31 May 2018, and the following oral evidence was given (T31.05.18 p25, LL20-48, and p26, LL11-35): Q. You say on 23 April 2018 you'd carried out searches of the internet using the words Paul Mansfield and Paul Mansfield Grant's Beach, do you see that? A. Yep. Q. Those searches you say revealed the Eagle Nest Park website, do you see that? A. Yes. Q. They were searches that you hadn't carried prior to 23 April 2018, that's right isn't it? A. Not that I carried I know that Kate Shelton had carried some out. Q. You don't say that in your affidavit do you? A. It's my affidavit. Q. There's nowhere in your affidavit where you refer to Kate Shelton having carried out searches of any kind is there? A. No. Q. There's no reference in your diary notes or in any other document annexed to your affidavit to Kate Shelton having carried out such searches is there? A. No. Q. No. I suggest to you that as far as your knowledge of the involvement or what you understand to be the involvement of Eagle Nest Park Pty Ltd in terms of potentially commissioning and being charged for the work that's alleged to have been carried out at the subject premises your first knowledge of that came about as a result of the material produced that now appears behind tab 11 of your exhibit - ... Q. If you could first answer that question by reference to the concept of Eagle Nest Park commissioning the subject work? A. As per the complaint we understood that Eagle Nest Park was involved in it. Q. You'd been made aware that the complainant referred to the location of the premises as premises with which Eagle Nest Park were associated, that's correct isn't it? A. Yes. Yes. Q. But until you received the material produced behind tab 11 you were not aware that Eagle Nest Park had been invoiced for any of the work that had been carried out were you? A. I can't recall. Q. You had no knowledge as to the level of Eagle Nest Park's involvement if any with the work that had been carried out on the subject premises had you? A. Again I can't recall. Q. There's no documentation that you'd like to draw the court's attention to annexed to your affidavits or in any diary or file note that's been produced that would indicate that you had that awareness of a particular connection of Eagle Nest Park in terms of commissioning the work or being charged for the work prior to the production of the material in response to the 119J notice is there? A. If I had those things I wouldn't be answering I can't recall.

Henderson's third affidavit

In his affidavit of 1 May 2018, Henderson deposed to his decision-making process in respect of his investigation, including the issuing of the s 119J notice to the Defendant.
Inter alia, he said (emphasis added): 4 ... I issued the [s 119J] Notice to investigate what had been built, what was exempt development, what work required development consent, what was prohibited, who had authorised the work, who undertook the work, and to work out what to do next. 5 I assumed from my Site Inspection that there were multiple people involved, and so I wanted to understand who was coordinating the work, engaging contractors, and giving them instructions. ... 6 The Notice was issued to understand what exactly was being built. It was not clear to me if it was a dwelling, or a tourism development or something else. I had been told the works were for a family retreat, however what I saw at my Site Inspection went beyond that. I issued the Notice to piece together what the works were for, to assist to characterise the development. 7 Characterising the works that had occurred on the Property would assist to determine whether or not they could later be granted development consent. This had implications as if the development was a prohibited use, then it would mean that Council would progress by seeking demolition of the works, rather than whether or not that development consent could be obtained. ... 9 When I issued the Notice I had not turned my mind to what Council would do about the works. Everything was still a puzzle at that point that I was trying to piece together. After the investigation was completed I would then think about what to do and how to proceed. When I issued the Notice to the Defendant, I had not decided what action the Council would take. There were a number of options on the table. If parts of the development were exempt development, no further action would need to be taken concerning that part. In relation to those parts which were not exempt development, the Council could prosecute, issue a penalty notice, or commence class 4 proceedings seeking demolition or modification of the development. I needed to know who authorised the work, if class 4 proceedings were to be commenced, because that would identify the person the Council would take action against to rectify the problem. 10 At the time the Notice was issued I had formed the opinion that this was a significant development and needed some kind of follow up. Given the scale of what I had seen, I thought it was unlikely that Council would proceed with a section 121B Order under the EPA Act, and it would be likely it would seek a Court order. Decision to commence these proceedings 11 I made the decision to commence these proceedings after talking to my bosses. The decision was made between approximately 14 August 2017 - 19 September 2017 after Council had completed the investigation, after the Defendant's development application DA2016/700 ... was approved, and after I had sent a show cause letter to the Defendant on 3 August 2017 ... 12 I waited until after the Eco-Tourism Facility DA was determined to make a decision as to the appropriate enforcement action. If the Eco-Tourism Facility DA had been refused I would have instructed Council's lawyers to seek orders that the works be demolished or modified, likely through class 4 proceedings in the Land and Environment Court. I would have instructed Council's lawyers to commence class 4 proceedings only, not a prosecution, as I considered the costs of removing unlawfully constructed works to be adequate punishment.

Henderson's oral evidence

In his oral evidence on 31 May 2018 (T31.05.18 p2, LL33-37), Henderson supplemented what he had said (in par 9, quoted above) about not having 'turned his mind' to what action Council might take, saying (LL36-37): Yeah I guess what I mean there is we hadn't decided, I hadn't decided what we were going to do.
He said he needed the information he sought in the s 119J notice in order to form a "final view" from a "better picture of everything that's occurred there and how it occurred" (T31.05.18 p15, LL18-31).
He was also asked about consulting his "bosses" before settling upon the action to take (see par 11, quoted above), and he identified them (at Tp3, LL35-38) as his "direct manager, Tim Atherton, and the director of development environment at the time, Matt Rogers". He confirmed (Tp16, L26-p17, L10) that it was his decision to commence these proceedings, but it was made in consultation with them - he did not agree that they simply had a power of veto; he sought their "approval and support".
Council officers had discussed a preference for bringing only Class 4 proceedings as Council's response to the illegal works, if the eco-tourism DA were approved (Tp18, LL1-14). However, Henderson could find no documentation which he could produce to confirm such discussions (Tp18, L18-p20, L18).
In any event, sometime "between 14 August approximately and 19 September 2017" was confirmed by Henderson as the time at which he/Council took the decision to prosecute (par 11, quoted above, and Tp20, L31-p21, L5); "potential class 4 proceedings" remained an 'equal' option, alongside class 5 proceedings, until that decision (Tp21, LL11-22); and the information obtained via the s 119J notice was necessary for the decision as to which course to take (Tp21, LL26-34).
Henderson was also cross-examined about the failure of a Mr Harrow to attend Council for interview - see Exhibit D1, affidavit 21 September 2017 paragraphs 26, 27, 28, 31, 34 and 35, and tab 24, and T31.05.18 p21, L36-p22, L20. This exchange occurred between Henderson and Mr Ireland: Q. You agree that it's significantly less frequent to ask witnesses in for recorded interviews if it's merely class 4 proceedings that are being proposed, that's correct, isn't it? A. You could use the information for both. Q. You could, but if you could attend to my question, Mr Henderson? A. The question was, sorry? Q. It's significantly less frequent for requests for taped records of interviews of witnesses to be made if it's only class 4 proceedings that are in issue? A. I don't have statistics to answer the question, but in my experience, I have used them in both yeah, I've used them in both. Q. I suggest to you that that process is indeed very unusual if it's only civil or class 4 proceedings that are being contemplated by council? A. I can think of at least one occasion where I've done it before in class 4, but Q. You can only think of one? A. And I can think of at least one straight off the top of my head, so.
In answer to cross-examination about the "show cause" letter he issued on 3 August 2017, Henderson confirmed (Tp22, LL22-43) that criminal proceedings had been an option "since the date of [his] inspection on 30 November 2015".
As already noted, in response to the Defendant's subpoena of 7 May 2018, Council's solicitors also provided to the Defendant (Exhibit P1) some documents from Council's records, including extracts from Henderson's notebook, his diary entries, and relevant delegations, with suitable redactions on account of privilege.
In terms of his being cross-examined about the completeness of his "paper trail" (my term), Henderson assured the Court (in a particular context) that "every reference" he could find he had "copied and provided" (T31.05.18 p18, L45).
Towards the end of Henderson's oral evidence (on Day Three), Mr Ireland turned his attention more closely to the s 119J notice procedure.
Henderson conceded (Tp22, L45-p23, L2) that the material obtained had not been used for "any 121B notice", nor "any class 4 proceedings", and the following evidence was elicited (Tp23, LL4-19): Q. It was gathered, it follows, at least in part to support a prosecution, wasn't it? A. It turns out that it was, but it wasn't that wasn't the sole purpose of it when we were asking for it, it was to help with the investigation. Q. But as we've established, it was at least a dual purpose and one of the purposes that you regarded, you've already said as equally important as potential civil proceedings, wasn't it? A. You're talking back after the 119J. Back at the time of the 119J we were still collecting information. Q. You've agreed with me that at that time potential prosecution and civil proceedings, ruling out a 121B notice, but potential prosecution and civil proceedings, they were both purposes that you had in contemplation? A. They were possibilities, there was also the possibility of no action whatsoever still at that stage.
Mr Ireland then questioned Henderson about his knowledge of ENP. There was a diary note in Exhibit P1, dated 10 August 2016, regarding a discussion with one Peter Dunn, and, at folio 280 in Exhibit D1, there is an invoice issued to ENP.
After introducing that evidence to Henderson in cross-examination, the following exchange occurred (Tp24, LL13-30): Q. You had no awareness prior to receiving the material produced in response to the 119J notice that [ENP] had been invoiced for the works allegedly carried out at the subject property had you? A. We knew of [ENP] from the original complaint. Q. That's not my question Mr Henderson? A. Sorry the question was did I have any knowledge of invoices prior to then? Q. Any awareness that [ENP] had been invoiced for the work allegedly carried out at the subject premises? A. No. Q. No? A. I don't think so, I don't recall. Q. The original complaint as you've pointed out referred to [ENP], that's correct isn't it? A. Yes.
The cross-examination then continued (Tp24, L48-p25, L10): Q. Prior to the material being produced pursuant to the 119J notice you certainly weren't aware that invoices had been issued to [ENP] for the work at the subject premises were you? You had no information as to that matter? A. I can't recall. Q. You had no information apart from the fact that the complainant had referred to the location of the premises as the [ENP] premises in the 23 September 2015 complaint of the involvement of [ENP] with the carrying out of the subject works did you prior to receiving the material in response to the notice? A. I can't recall when but we always had a knowledge of the link between the owner of the property and [ENP].
There then occurred the further exchanges about ENP, which I included above (at [211]).
Mr Ireland then asked Henderson about the Mansfield Family Trust (Tp26, LL43-48): Q. You weren't aware of the existence of the Mansfield Family Trust and its potential involvement with this development prior to the production of this material pursuant to the 119J notice where for example at page 188 the plans refer to the Mansfield Family Trust at the bottom left hand corner. That's the case isn't it? Prior to production of this material behind tab 11? A. That's the case.
In re-examination by Mr O'Gorman-Hughes, Henderson was asked about ENP, and the following evidence, inter alia, was given (Tp27, L38-p28, L7, and p28, LL24-28): Q. You've indicated in your evidence that P/L was a reference to propriety limited, what was your understanding at the time you issued the notice as to the involvement of Eagle Nest Park or Eagle Nest Park Pty Ltd? A. Well it appears that that company had some involvement with the development. Q. Prior to the issue of the notices was there any further investigation that you became aware of about an entity [ENP]? IRELAND: I object to the question. I don't know how that arises from cross examination. HIS HONOUR: I thought it arose from your interrogation of the invoices. I'll allow the question. WITNESS: I do remember that we cross referenced [ENP] just via internet searches because when we looked up the property it came up with an owner as Paul Mansfield and I do remember Kate Shelton checked and she found that she could like Paul Mansfield with [ENP] which for us was just the cross reference that we had the right property. ... Q. Yes, so when you issued prior to the subpoena's being issued was your sorry, prior to the 119J notices being issued was your, is it true that your knowledge of [ENP's] involvement was not limited to any information provided in response to an earlier 119J notice? A. Yes.

Carlo Zoppo's evidence

In what I have already written I have covered much of the information provided by Mr Zoppo, in his affidavit of 4 April 2018, which was essentially based on what is contained in Henderson's 21 September 2017 materials (see [179]ff above).

H: Council's Submissions

Mr O'Gorman-Hughes amended and extensively supplemented his original written submissions, before commencing his oral submissions on 31 May 2018.
He also provided a folder of authorities (T31.05.18 p29, L38).
In his oral submissions, Mr O'Gorman-Hughes drew particular attention to some of Zoppo's material, noting (T31.05.18 p30, LL45-46) that "it provides a very useful summary of why it's on the cards that the documents produced [on subpoena] will materially assist the prosecutor's case" (see especially pars 9 to 21 which rely on the material provided by the Defendant's and his alleged contractors, to Henderson, in response to the s 199J notices).
Mr O'Gorman-Hughes (e.g. Tp31, LL26-30) would expect the ENP subpoena to "materially assist the prosecutor's case", because ENP's role is "relevant to these proceedings", and (LL46-48) K&C "must have been told by someone that the works were undertaken", without consent, prior to K&C's involvement in the Defendant's DA.
Mr O'Gorman-Hughes submits (pars 4 and 5): The evidence filed to date establishes the development was carried out during the charge period and that no consent was obtained for it. Whether the development was prohibited, or permissible only with consent, is a question of characterisation ... [and] any evidence which establishes the defendant carried out the development (either personally, or by instructing others) will materially assist the prosecutor's case.
Having reviewed the evidence, Mr O'Gorman-Hughes noted (par 7): a) [ENP], a company of which the defendant was sole director, paid and instructed contractors to carry out the work the subject of the charges; and b) [K&C] were retained by the defendant to seek development consent for the development. Although retained after the charge period, the company's statement of environmental effects prepared on behalf of the defendant identifies when the work was carried out, and what the defendant's intended use of the development was.
He then submitted orally (T31.05.18, p33, LL19-31): In summary the evidence produced shows that [ENP], a company of which the defendant was the sole director, instructed contractors to carry out work and invoice that company for the work, and that [K&C] who were retained to obtain lodge a DA to obtain consent before the defendant had been told at some point when the work was carried out, what it was, and what the defendant's intended use of the development was. Access orders were in fact made to documents produced by [K&C] in these proceedings. There was no objection raised to the subpoena at the time. ... [K&C] ultimately produced documents and one can only assume that they had no difficulty in knowing what they needed to produce in producing the documents but the defendant now submits having reviewed the documents, having been successful in arguing that he should be given first access, that the subpoena should be set aside.
He then went on, referring to his amended written submissions, to respond to "each of the broad categories of challenge that are made to the two subpoena's" (sic - Tp33, LL33-34).
Relying on Neal's affidavit, Mr O'Gorman-Hughes identified the following grounds of challenge (par 9): King & Campbell subpoena a) The subpoena is too broad - using the expression "relating to" (at [14]) b) The documents sought have no apparent relevance to the proceedings (at [14]) c) The forensic purpose is based on an invalid s. 119J notice (at [15]) Eagle Nest subpoena d) There is no legitimate forensic purpose (at [17]) e) The subpoena is too broad - using the expression "relating to" (at [22]) f) The subpoena requests documents which are outside the period during which the alleged development was carried out- it is not on the cards that the documents will materially assist the prosecutor (at [22]). and then, responding to the Defendant's primary submissions, he added the following grounds to the above list (his emphasis): S 119J notice g) the subpoenas use alleged admissions and information obtained from s119J notices that were ultra vires, being issued for the purpose of enabling commencement of these proceedings ([5], [15]); Eagle Nest Subpoena h) There is no time limit, the documents could have been created at any time (at [29]); i) Paragraphs 1(d), 1(e) and 2 seek documents outside the charge period (at [30], [35]); j) Paragraphs 1(d) and (e) seek documents relating to the use of the land for an eco-tourism facility (at [31]); k) The breadth of paragraph 1 is excessive (at [36]); King & Campbell Subpoena I) Documents created outside the charge period are sought (at [44]-[45], [48]);
Mr O'Gorman-Hughes rejected the suggestion that either subpoena is "too broad", including because of the use of the term "relating to" (grounds (a), (e), and (k) above).
He relied, in that respect, on the principle articulated by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation ("Southern Pacific") [1984] 1 NSWLR 710, and recently affirmed by the Federal Circuit Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors (No 3) [2018] FCCA 34. He argued that what was required was clearly stated in the subpoena, and noted that K&C had obviously been in no doubt about what was required (subs 11 to 13).
On questions of apparent relevance, legitimate forensic purpose, and the test of "on the cards" (grounds (b), (d) and (f)), Mr O'Gorman-Hughes argued, as had Mr Ireland, that Chidgey has cemented the relevant principles ([113], [115] and [130] above), but that the Chidgey test has been met in the present case (subs 14 to 16) - it is "on the cards" that documents produced on subpoena will materially assist the Prosecutor's case.
On the question which Mr Ireland identified as a key issue, namely whether the s 119J notices were ultra vires (grounds (c) and (g)), Mr O'Gorman-Hughes submits (par 17) that Mr Ireland provided no authority for that being a ground for setting aside a subpoena.
Pursuant to Chidgey, Council bears the onus of proof of identifying the legitimate forensic purpose, but the Defendant bears the onus on the question of the possible invalidity of the s 119J notice, based on the ground that it was issued for an improper purpose (T31.05.18 p36, LL26-36).
While Mr Ireland contends that the notices were issued as part of a criminal investigation, Mr O'Gorman-Hughes submits (par 20) that the notices were issued during a Council investigation, to which criminal proceedings were only one possible response. They became the actual response more than 18 months after the procedure was adopted.
Whether it chose to take either Class 4 or Class 5 proceedings, Council would need information about who carried out what unauthorized work. Council also needed to characterise the works, in order to determine if they could be granted consent or would have to be demolished (T31.05.18 pp36-37). The lack of a firm Council position as at the dates the notices were issued is confirmed by the Council file notes (in Exhibit P1), which are consistent with Henderson's affidavit and oral evidence.
Although Henderson was closely cross-examined, his candour was not challenged (Tp38, LL2-6, and p42, LL1-16).
Mr O'Gorman-Hughes submits that s 119J must be read in context with its accompanying sections in Division 1C of the EPA Act, such as ss 119A, 119C, and 119S, none of which I need to set out here in full.
Section 119A sets out relevant definitions; s 119B deals with appointment of investigation officers (by the Secretary of the Department, or by a Council); s 119C sets out the purposes for which powers in that division of the EPA Act may be exercised; ss 119D-119I deal with powers of entry and search (including use of search warrants - s 119G); and ss 119J-119L deal with powers to obtain information. Section 119F(1)(g) permits "an investigation officer who lawfully enters premises" to do anything he/she "thinks is necessary to be done for an investigation purposes, including ... examine and inspect any records" (widely defined in s 119A).
As already discussed, the Defendant relies heavily on Zhang. The Defendant's solicitor raised the case in his representations to Council and its lawyers ([18] above), and his counsel relied on it heavily on these NsOM ([94]-[107] above).
However, the persuasiveness of Zhang must be assessed, it was submitted, against legislative changes subsequently made to its statutory context.
Mr O'Gorman-Hughes observed that, while the Defendant's case on s 119J reached its "highest" point when it referred to Zhang, "both the facts in that case and the legislation were quite different" (T31.05.18 p39, LL40-43), and that case should be "distinguished" (Tp40, L29).
In Zhang, a prosecution was already on foot when the notice issued, but here there were merely "options on the table", and no decision had been made to prosecute.
In Zhang, the covering letter with the notice was (Tp40, LL1-3) "quite clear in saying there was no doubt on the facts that it was issued for the purposes of prosecuting and no other purpose" (see also LL15-17).
Mr O'Gorman-Hughes's primary closing submission on this aspect of the present case was (Tp43, LL7-13) that Council: ... wasn't gathering evidence for the prosecution, it was investigating in order to decide what action to take but even if you didn't accept that and you didn't accept Mr Henderson's evidence and you move on to the next step, that it was in fact gathering evidence for a prosecution, the Act as it stood at the time of the issue of the notice as it changed and it specifically identified gathering evidence of commission of an offence was something that was part of the council's functions.
He also submitted, after analysing Chia, which he finds highly comparable with the present case (Tp46, LL31-38): ... the defendant hasn't established that what the council did was any more than investigate what to do for the purpose of deciding what course to take so at that point, they fail. However, if you don't accept ... what Mr Henderson said in the witness box, the Act changed after Zhang, it made quite clear that an investigation purpose included gathering evidence of an offence and it's certainly consistent with the approach taken by Robson J that the subpoenas should not be set aside on those grounds.
He submits that the Court should conclude that the s 119J order was issued to enable Council to exercise its specific EPA Act functions, which include Class 4 proceedings, and alternatives such as penalty notices or s 121B orders: The mere fact that a Council contemplates the possibility of prosecuting the recipient of a notice does not render that notice invalid. The EPA Act specifically notes that an order may be issued in circumstances where the recipient might subsequently be prosecuted (subs par 20.6 - emphasis mine).
Mr O'Gorman-Hughes also submitted (pars 21-22 - emphasis in the subs): 21 As at the date the notice was issued, s. 119S of the EPA Act relevantly provided that records given in response to the 119J notice, and further information obtained as a result of information furnished, could be used in subsequent criminal proceedings: (2) Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty. (3) Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if: (a) the person objected at the time to doing so on the ground that it might incriminate the person, or (b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person. (4) Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person. (5) Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground: (a) that the record or information had to be furnished or the answer had to be given, or (b) that the record or information furnished or answer given might incriminate the person. 22 Clearly the intent was that a Council could issue a notice when investigating a breach.
Mr O'Gorman-Hughes submits, in respect of Henderson's evidence, that, if the Court accepts him as a truthful witness (Tp38, LL14-28 - emphasis added): ... he needed to get the information to make the decision as to whether the council would go down the path of class 4 proceedings or class 5 proceedings and know whether the development was actually approved and he didn't make that decision until many months after or over a year after the notice was issued there's nothing unlawful about the manner in which he carried out the issue of the notices. If you accept that he's honest and he really didn't make the decision until after the DA was determined and that's consistent with what we see in the contemporaneous notes the defendant's case is based on the proposition that a council that has both investigative powers and powers to remedy a breach in class 4 and prosecute in class 5 can't issue these notices where it's contemplated that prosecution might be a possibility. It would have to make up its mind first that it is not going to prosecute someone and only then it could issue the notice and that's not consistent with the wording of the sections ...
He analysed the amending sections of the EPA Act, and then argued (Tp39, LL16-38 - emphasis added) that: ... the Act envisages, certainly when a notice is issued to someone to answer questions that it will be in the contemplation of council there will be criminal proceedings and that's a simple acknowledgement that a council has dual roles unlike the Crime Commission, unlike ICAC, it investigates, it prosecutes, it can commence civil proceedings. ... My submission is the intent of these provisions is that the council could issue a notice when it's investigating a breach of the Act but it's quite clear from these provisions that it wasn't a requirement that the council rule out prosecuting at the time when it issues the notice and council's by their nature in these sorts of cases will have a number of options which include both prosecuting and commencing class 4 proceedings or issuing 121B notices.
The relevant amendments were made on 31 July 2015, the order in Zhang having been issued on 29 August 2014. Sections 119A to 119U, dealing with Council enforcement powers, were introduced. Mr O'Gorman-Hughes quoted (par 26.1) from the Minister's Second Reading Speech (emphasis in the subs): Councils also will have the power to require information or records before entering premises and to seize items that enforcement officers suspect are connected with an offence. These new powers will greatly assist councils in carrying out their enforcement role and allow them to build cases against suspected offenders.
He also noted (par 26.2) that, in s 119F, an "investigation purpose" can involve seizing "anything that the officer has reasonable grounds for believing is connected with an offence against this Act", or can "afford evidence of the commission of the offence".
He, therefore, submitted (par 26.3): The intention of the Act, as amended following the issue of the order in Zhang, was to make clear that an investigation purpose included, amongst other things, gathering evidence of the commission of an offence. As conceded by the defendant, s. 34(1)(b) of the Interpretation Act allows the Court to consider the Second Reading Speech to determine the meaning of a provision if it is ambiguous. To the extent that there is any ambiguity in what is meant by an investigation purpose, the 2nd reading speech confirms that it includes allowing Council's to build cases against suspected offenders.
In Chia, which was decided only on 22 May 2018, Robson J refused an application to exclude evidence on the basis that it was (subs par 26.5) "clearly contemplated by the legislature that there is no division between the investigative and prosecuting bodies for offences created by s. 125" (see Chia, at [89]).
In the present case, the Council "wears many hats" - it is a prosecuting authority, an investigating authority, and an authority that tries to remedy breaches of the EPA Act (T31.05.18 p45, LL22-24).
Had the intention of the post-Zhang amendments been to limit an acceptable investigation purpose to the commencement of only civil proceedings, Mr O'Gorman-Hughes submits that the legislature could have used the term "breach of the Act", rather the word "offence" (par 26.6(b)).
Mr O'Gorman-Hughes submitted (par 26.6(a)) that the Defendant has failed to establish that "the notice was not issued for the purposes of the Council exercising its functions under the EPA Act".
In any event, the responses to the notices were not the only source of Council's knowledge of the involvement of ENP and K&C - the original complaint implicated ENP, the Google searches indicated ENP's involvement in the development, and K&C authored the SEE for the Defendant's DA.
Mr O'Gorman-Hughes's written materials (subs par 17.3) also included, "for completeness" (Tp43, L35), a more comprehensive extract from Aronson's text (6th ed) than Mr Ireland's extract from the 5th ed (see [128] above), and he drew the Court's attention to the text's commentary on "Problems of proof" (sec 5.580).
He despatched swiftly (pars 27 to 33) the other identified grounds of challenge - "outside the charge period" ((f), (i) and (l)), "no time limit" ((h)), and "eco-tourism facility" ((j)). As Mr O'Gorman-Hughes noted (Tp48, L43-p49, L1): [They are] simply a reflection of the fact that at one point the defendant referred to the unauthorised development as a retreat for his family. In the [K&C] documents there was a reference to it being intended for use as a dwelling house. Ultimately it has been used as an eco tourism facility so the subpoena simply refers to the works as either the works or the proposed eco tourism facility, so that the recipient of the subpoena can't avoid producing documents by saying, well it's not an eco tourism facility, when it was carried out it was a dwelling, or if we sought access to a dwelling, they can't say, well it was always going to be an eco tourism facility.
If the Court found any element of the subpoenas "too broad", it could "set aside the offending portions, or exempt certain documents". Contrary to what the Defendant submitted, the Court's powers are not limited to setting aside the whole of any offending subpoena (par 34).

I: The Defendant in Reply

Mr Ireland's written submissions in reply responded to the original version of the Prosecutor's written submissions, which were heavily amended on Day Three, and were followed by Mr O'Gorman-Hughes's oral submissions.
Mr Ireland replied orally, at some length, to both the Prosecutor's written and oral submissions, and provided yet another bundle of authorities (T31.05.18 p54, L2). I have already noted above some of his submissions in reply.
In response to Mr O'Gorman-Hughes's defence of the use of the phrase "relating to", Mr Ireland said (reply subs par 3) that it remained necessary for the subpoena to be "properly confined by further specific language". In this regard, the challenged subpoenas use language which is too wide and uncertain, and the Prosecutor's reference to Southern Pacific ([242] above) is "interesting, but completely beside the point" (T31.05.18 p50, L47).
The Prosecutor's forensic purpose is deprived of legitimacy because it arises from the invalid use of s 119J to obtain evidence, and the subpoenas, therefore, fail the Chidgey test, and amount to an abuse of process (reply subs pars 4 to 6).
In response to Rogers, the Prosecutor, who bears the onus of establishing a legitimate forensic purpose, cannot point to any authority where conduct of this kind by a Prosecutor has been allowed (par 8). It is not necessary for the defence to establish a foreign or ulterior objective to make good the claim of abuse of process (par 9). Relief will be granted where there is oppression and unfairness to the Defendant, and/or the administration of justice will be brought into disrepute (pars 10-11).
Such relief need not be a stay of proceedings - R v Seller [2013] NSWCCA 42, at [110]-[117]) - and will often involve exclusion of evidence at trial, or, as sought here, the setting aside of subpoenas before trial (par 12), so as to avoid the abuse (pars 15 and 21). "The Prosecutor is blatantly seeking to follow a line of inquiry exposed to it only by its own ultra vires conduct" (par 18). (See my discussion of Rogers at [153] to [161] above.)
Mr Ireland also submitted (reply subs par 17): To allow the subpoena to [ENP] to stand based as it is on the information obtained in the ultra vires s119J notice would bear adversely on public confidence in the criminal justice system, having regard to the circumstances of this case.
In response to the Prosecutor's argument based upon changes to s 119J's statutory context, Mr Ireland submitted (reply subs pars 23 to 30, and 33 - emphasis added - and see also T31.05.18 p55, L22 to p59, L2): 23. The section confining the purposes for which the s119J notice may be issued is s119C and s119A. The reference to criminal proceedings in s119S does not allow an inference to be drawn that it is within power for a Council to issue a s119J notice for the purpose of using the documents in criminal proceedings. First, documents may be sought for a valid investigation purpose within the meaning of s119A and 119C and later used in criminal proceedings, provided that is not a substantial purpose for the issue of the notice; there is thus no tension between s119S and ss119A and 119C. 24. Section 119S does not provide that material obtained by a Council pursuant to s119J may be used by it in criminal proceedings. The section says that the material (obtained pursuant to the Division) will not be inadmissible on the grounds of self-incrimination, if the self-incrimination warning was given. It follows that s119S cannot reasonably be construed as conferring a power on Council of issuing a s119J notice to obtain material for use in a prosecution, a power that is not conferred by s119C. Such a construction of s119S is not open on the text of the section and is not necessary to give the reference to criminal proceedings and the self-incrimination warning provisions work to do as material obtained under a s119J notice can be used in criminal proceedings, but that cannot be a substantial purpose of the issue of the notice (as that is not an "investigation purpose"). 25. It may be that a Departmental investigation officer may be able to issue a s119J notice for the purposes of obtaining material for use in criminal proceedings, as the following specific "investigation purpose" is recognised in s119C for such a Departmental officer: "determining whether there has been compliance with or a contravention of this Act, including any instrument, consent, approval or any other document or requirement issued or made under this Act". No such investigation purpose is recognised for a Council in s119C, rather a Council is restricted to issuing a s119J notice for the purpose of enabling it to exercise its functions under the Act, and criminal prosecution is not one of those. 26. Further, it is not in dispute that even a Council has a prosecutorial function; the point is it is not a function under the Act. Documents obtained to enable the exercise of a function under the Act (such as assessing development applications, rating, issuing s121B notices, etc.) may on occasion with perfect propriety be later used in a prosecution, whether for an offence against the Act or otherwise (and whether brought by Council or another prosecutor), in which case s119S applies to modify the common law privilege against self-incrimination. The section has nothing to say about a Council's functions under the Act, and does not make criminal prosecution such a function and operates quite sensibly even though that is not a function of Council under the Act. 27. The replacement of s118BA and surrounding provisions with s119J and surrounding provisions was effected by the [Environmental Planning and Assessment Amendment Act 2014] assented to on 19 November 2014, prior to the decision in Zhang. That timing shows that the current provisions cannot be construed as seeking to displace the construction of the [EPA Act] reached by the Court in Zhang, which is that criminal prosecution was not a function of Council under the Act (the operative language in s119C). 28. The wording of s119J must also be contrasted with the specific search and seizure powers described in s119F, which do expressly allow seizure "anything that the officer has reasonable grounds for believing is connected with an offence against this Act". These words or anything similar are specifically absent from s119J, the power to issue notices. The Minister's 2nd Reading Speech (Hansard, 22 October 2014) in relation to the 2014 amendments specifically noted the s119F amendments as allowing a council to gather evidence and build cases against suspected offenders. There was no corresponding change to the notice provisions in s119J. It is not permissible to go to the second reading speech to "determine the meaning" of s119J, which is not ambiguous or obscure and does not lead to any absurd or unreasonable result (see s34(1)(b) Interpretation Act 1987), but this speech may be had regard to (s34(1)(a)) as it confirms that the meaning of s119F and 119J is the ordinary meaning conveyed by their words, with s119F allowing seizure of material connected with an offence, and s119J only allowing notices for an "investigation purpose". 29. The Prosecutor says that the reasoning and decision in Zhang does not apply here as Council was not exercising its function to prosecute at the time the notice was issued: par 25 Prosecutor's Submissions. However, this is not what Zhang says. The illegitimate purpose was issuing the s118BA notice "for the purpose of obtaining information to allow Council to exercise prosecutorial functions". The Prosecutor relies on inferences it says may be drawn from the submissions made by Mr Zhang (recorded at [20] of Zhang; par 23 Prosecutor's Submissions) rather than quoting the relevant parts of Preston CJ's reasoning and decision at [69] - [70] in Zhang (see Prosecutor's Submissions at par 24, [and [104] above]). 30. In any event, even applying what the Prosecutor says is the law at par 24 of the Prosecutor's Submissions would lead to the striking down of the s119J notice here, as it was issued "to obtain information to enable a Council to exercise its function to prosecute". It does not matter, contrary to the Prosecutor's contention at par 25, that at the time the notice was issued, criminal proceedings had not started. That analysis would have absurd consequences, with a notice issued the day before a prosecution was filed being valid, the same notice issued a day after that event being invalid. That cannot be the law. Rather the law makes the determinant of validity whether the improper purpose is a substantial purpose of the notice's issue, not an arbitrary date selected by a prosecutor. ... 33. It is irrelevant that there was a time period between the s119J notice and the commencement of proceedings, as the improper purpose was conceded at the time of their issue. The Prosecutor refused when asked to give an undertaking not to use the material obtained in the criminal prosecution: first Henderson affidavit, Ex CH-1, page 60-61. Further, the Prosecutor's solicitor acknowledged in correspondence that the s119J notice was issued "during its investigation of the alleged offences the subject of both proceedings" (letter 22 February 2018, page 8 Todd Neal Affidavit sworn 5 March 2018, Tab 36 Defendant's Bundle). This is a case where there was no other purpose than to gather evidence for use by Council in this prosecution, and that is impermissible having regard to s119C.
Mr Ireland submitted (T31.05.18 p57, LL10-20 - emphasis added) that: ... there was a dual purpose for the issue of the 119J notice and that at least as important as the purpose of obtaining material for potential class 4 or civil proceedings was the purpose of obtaining material because it was to be potentially used in criminal proceedings because it was thought by Mr Henderson that offences against the Act had been committed. ... there was a substantial purpose behind the issue of the 119J Notice, being to obtain and gather material that would be useful in any criminal prosecution.
The principles laid down by the Chief Judge in Zhang are unaffected by the changes in the legislation. The fact that the notice was issued some time before the proceedings were commenced (c.f. Zhang) "does not change the [adverse] inference [the Defendant submits that I] would otherwise ... draw on the evidence" (Tp59, LL46-48). The test is the same as that adopted in Samrein and Desane. Mr Ireland says (Tp59, LL17-24, LL37-40 and LL44-47 - emphasis added): In order for the 119J notice to be found to be invalid, it is not necessary that your Honour finds that the sole purpose was to obtain information for use in criminal proceedings. It is merely necessary that your Honour finds that that was a substantial purpose and what is the evidence that we have here? The evidence we have here is that from the very outset, it was an important and substantial purpose, Mr Henderson said it was, to his mind, at least an equal purpose, to seek material for potential use in criminal proceedings, as well as also seeking material for potential use in civil enforcement proceedings. ... [T]he evidence as to what council actually did was that there was at least a dual purpose being, as I understand his evidence of equal importance to obtaining material for use in potential civil proceedings being the obtaining of material for use in potential criminal proceedings ... [Henderson] was speaking the language and thinking the language of criminal prosecution from the outset, and when council was asked to give an undertaking that they would not use this material in a criminal prosecution, council declined to give that undertaking.
Henderson's evidence is (Mr Ireland's subs at Tp60, LL8-9) "that there were really two coordinate purposes, both very substantial but relevantly, one which was entirely impermissible, having regard to the scope of 119J", and (LL24-25) that "there's absolutely no evidence that if it had not been for this tainted dual purpose, the 119J Notice would have been issued".
In terms of the other alleged defects in the subpoenas, Mr Ireland says (par 34, and Tpp61-62) that, contrary to Carroll, and O'Shannassy, the Prosecutor subpoena'd K&C to seek admissions which it does not know exist or not, but about which it is speculating, based on some remarks in the SEE, prepared in September 2016, well after the doing of the allegedly illegal works.
The "speculative" K&C subpoena exercise thus becomes "discovery", contrary to authority. As it has no time limitation (par 35), "it will necessarily dredge up documents created well after the charge period that have no apparent relevance to the proceedings. "... [T]here is just no discrimination between documentation that may relate to the actual carrying out of the works ending in the charge during the charge period, and documentation that may have arisen in relation to completely different activities on the land after 30 November 2015" (Tp63, LL3-7).
ENP is directed to produce documents regarding the eco-tourist facility, but Mr Ireland argues that that facility is not the subject of any charges, and "apparent relevance" must be assessed by reference to the case as pleaded (see Azar, and reply pars 36-37).
In the absence of any evidence at all from Shelton, the Court must act upon Zoppo's and Henderson's candid concessions that the subpoenas were issued on the basis of the material obtained from the s 119J process. "... [T]he reason for the invalidity of the 119J notices is not because Mr Henderson had or had no knowledge of the existence or involvement of Eagle Nest Park, but because they were seeking documentation that would at least, as a dual purpose, potentially be used in criminal prosecution proceedings" (Tp64, LL1-5).

J: Consideration

The issue at this stage of the proceedings is not access to, the admissibility of, nor the probative value of, any documents produced in response to the challenged subpoenas, but their very validity. The Defendant seeks that their material/effective components be set aside completely, even though one appears to have been complied with already.
While I find some substance in the cases which Mr Ireland makes in respect of "fishing", time frames (or lack of them), and overall width or breadth of one or both of the subpoenas, it is not really necessary for the Court to delve into those issues unless his principal challenge fails.
That principal challenge concerns the propriety of the Prosecutor's strategy of deploying a s 119J process, and then using its output as the basis for issuing the challenged subpoenas. Are the subpoenas tainted by the inappropriate application of s 119J by the Prosecutor?
The subpoenas are, on their face, quite broad in their scope, and may infringe some of the established principles, K&C perhaps more so than ENP. I accept that, despite Basten JA's or Gibson DCJ's caution about "rewriting" them ([150]-[152] above), the objectionable elements to be found in them could easily be excised or confined. However, if the Defendant's s 119J challenge succeeds, the Defendant's more detailed criticisms need not be determined.

Authorities

I have quoted at length (largely in Section F above) from the judgments of many learned judges, who have covered the law on many issues which arise regarding subpoenas, such as abuse of process, ulterior purpose, and so on, and not only issues like breadth, time parameters etc.
Challenges often involve more than one such issue, and they frequently overlap. The issues regarding the two subpoenas in the present matter are not entirely the same, other than the implications for them of the principles in Zhang. In analysing the cases, confusion of principles is to be carefully avoided.
Saleam 1989, Carroll, Rogers, Ridgeway, and especially Zhang, are all relevant to the range of challenges to the present subpoenas, and passages from all of them have been quoted above, with some emphasis (see generally [94]-[107] and [116]-[161]). I will not now repeat the principles for which each case stands, but it must be recalled that the offending notice in Zhang was issued to a witness and not a defendant.
Before I turn to discuss the Defendant's fundamental challenge, which is based on the principles in Zhang, as they might apply to a (likely) defendant, it is useful to "recap" here the principal elements of the chronology of relevant events recounted above:

Chronology

Zhang was argued on 19-20 November 2014, and decided on 6 February 2015. The relevant amendments to the EPA Act received assent on 19 November 2014, and commenced on 31 July 2015.
The prosecuting Council in the present matter received a complaint, about works on the Defendant's site, on 23 September 2015, inspected the subject property on 30 November 2015, and commenced discussions and correspondence with the Defendant immediately.
The Council issued its s 119J notice to the Defendant on 15 December 2015, and correspondence ensued between Council and a solicitor then acting for the Defendant (Mantei).
In January 2016, K&C was engaged to assist the Defendant with his eco-tourist DA/SEE process.
The date upon which the Defendant responded in detail to the s 119J notice is not clear, but is said to be 9 May 2016.
The Defendant's eco-tourist DA was lodged on 7 September 2016, and consent was granted 24 May 2017.
Council issued its "show cause" notice to the Defendant on 3 August 2017, and he responded on 14 August 2017.
These two Class 5 proceedings were commenced on 21 September 2017, and the subject subpoenas were issued on 7 February 2018.
K&C complied with its subpoena on 19 February 2018, but the NsOM to set both subpoenas aside were filed on 5 March 2018.
This hearing commenced on 6 April 2018 and concluded on 31 May 2018.

Discussion

It was clear to Council from 23 September 2015, and certainly from 30 November 2015, that offences might have been committed in developing the subject land, and that Council might consider bringing charges for the doing of the "offending" and "significant" development without consent.
In the email sent to him on 30 November 2015 (tab 7, fol 46), the Defendant was put on notice of Council investigations, the need to cease work, and to not use the premises for some purposes, and the requirement that he provide information. He was, it appears, not specifically warned of criminal proceedings.
By 15 December 2015, Henderson's position had moved beyond issuing a s 121B order, or merely a PIN. His s 119J notice to the Defendant was issued on that date, because, even though he told the Court he may have ultimately decided on taking "no action", Henderson said he "needed some kind of follow up", or a "better picture" to inform a "final view" on taking some more serious action (i.e. in Class 4 or Class 5).
By 4 February 2016, the parties' competing interpretations of the EPA Act and Zhang were already on the record between them, and Henderson admitted, in his evidence, that criminal proceedings were, at that date, "a possibility".
By May 2016, the Defendant had responded, comprehensively, to the December 2015 s 119J notice, and further notices were issued (to others).
When the eco-tourist (or "validating") DA was lodged on 7 September 2016, consideration of Council action (or no action) against the Defendant was deferred, but K&C's SEE, submitted with the DA, acknowledged, on the Defendant/applicant's behalf, that works had been undertaken on the site, without consent, during 2014-2015.
Sometime after the eco-tourist approval was granted on 24 May 2017, the Council issued (on 3 August 2017) its "show cause" notice, which clearly indicated that criminal proceedings were contemplated - the notice emphasised the absence of consent in 2014-15, in probable "breach" of the Act.
Between 14 August and 19 September 2017, Council (i.e. Henderson in consultation with his "bosses") "decided" to bring these proceedings.
It was only at that late stage (in December 2017, or, indeed, February/April 2018) that Henderson researched the internet, media etc., whereas the Council had pursued the s 119J route in late 2015/early 2016, had commenced the prosecutions in September 2017, and had issued these subpoenas on 7 February 2018.
I find that Henderson, by his use of s 119J in 2015-2016, was seeking to clarify matters, which would later found "particulars of charge", rather than to inform any decision by him as between Class 4 and Class 5 proceedings. I reject Council's arguments to the contrary. While I found that Henderson to be a candid witness ([248]), I cannot accept his "reconstructive" evidence in this respect.
Henderson may well have had a "dual purpose", but the Class 5 (i.e. criminal) option was a very "substantial", if not his only, or his primary, purpose in using s 119J.
As the issuing party cannot satisfy the Court that the s 119J process was truly "legitimate", in the Zhang sense, in all the circumstances of the subsequent prosecution, the Prosecutor cannot satisfy the Court that its forensic purpose in issuing the subpoenas was "legitimate".
I also find that the authority of Zhang to that effect is not eroded by the subsequent legislative changes discussed above ([262]-[264]).
The Council appears to contend that changes were made to the EPA Act because of the decision in Zhang, but there is no evidence of that.
On this "statutory context" aspect of the matter, Mr Ireland's submissions (set out at length, and with relevant emphasis, in [280] above) are, with respect, clearly to be preferred to those of Mr O'Gorman-Hughes ([252]-[268]).
I also accept the submissions made by Mr Ireland in respect of "ulterior purpose" (as discussed in Samrein and Desane). Those submissions include the following (Tp60, L40-p61, L6, and p61, LL13-23): ... gathering evidence for the purposes of the criminal proceedings ... was ... at least equally important as obtaining information for civil proceedings. There's absolutely no evidence that the notice would have been issued absent that ulterior purpose of being able to obtain the information for use in criminal proceedings and ... the failure to give an undertaking at an early point in time that material wouldn't be used in criminal proceedings is also highly indicative. ... Henderson['s] ... own original affidavit at para 6 referred to the offences that had apparently been committed. It's only his later affidavit of 1 May that reworks the situation and sets out [a] dual purpose position ... ... .... A DA being approved, according to Mr Henderson's evidence, [is] a reason for commencing prosecution proceedings [but] ... there's an absence of documentation as to any recommendation that Mr Henderson gave that that would be the determinant as to whether class 4 proceedings or criminal proceedings were to be instituted by him, given his alleged decision making capacity for council.
I accept the correctness of Preston J's decision in Zhang, and am very comfortable in following it in the present case, where the target of the statutory process is a likely defendant to criminal proceedings, and not merely a witness.

K: Conclusion and Orders

Zhang is compelling authority to find for the Defendant on these challenges, and orders should be made in accordance with the prayers for relief in each of the four NsOM.
In respect of ENP, the whole subpoena should be set aside, as no case has been made out for the Court to strike out only one of paragraphs 1 or 2 of it.

Costs

The Defendant also sought an order for his costs on the NsOM, but the Prosecutor submitted (par 35) that: The Court does not have jurisdiction to make the order for costs sought by the defendant: s. 257C Criminal Procedure Act; Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204 at [75]-[104].
Apart from some preliminary submissions by Mr Ireland on the question of the costs thrown away, the question of costs on the NsOM has not been argued at all.
In those circumstances, and given that the Court is also unaware of the terms of any agreement reached between the parties on the question of the costs thrown away, I think it best that all questions of costs be formally reserved at this stage.

Orders

Accordingly, the Orders of the Court will be: 1. The subpoenas addressed to King & Campbell Pty Ltd and Eagle Nest Park Pty Ltd, in each of these two Class 5 proceedings, are set aside. 2. All questions of costs on the four Notices of Motion are reserved. 3. The exhibits are retained. 4. The folders of authorities are returned. 5. The two proceedings are stood over to the Registrar's list on Thursday 26 July 2018 for further case management.

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 July 2018

Environmental Planning and Assessment Regulation 2000(NSW)

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