Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

Proceedings concerning the prosecutions

1. The Company, by Notice of Motion filed on 1 February 2017, attacked the charges in each prosecution. This Notice of Motion also attacked the subpoena issued to the RMS.
2. By decision given on 25 August 2017, I concluded that one charge was to be dismissed and that the other two charges were defective but that the Prosecutor should have the opportunity to seek leave to amend each of them. My reasons for those conclusions were set out in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109 (my 2017 decision).
3. My 2017 decision recorded, at [14] and [15]: 14 The Company's Notice of Motion also challenged the subpoena (nominated as being in all three of the proceedings) that had been issued to the RMS, the State Government highway construction and maintenance entity, to which the Company has supplied road construction materials. The materials are said by the Prosecutor to have been supplied from the plant at which the breaches are alleged to have occurred. 15 The Company's proposed orders (in the alternative) concerning this subpoena are set out in (3) and (4) of the terms of the Notice of Motion. The orders sought concerning the subpoena are in the following terms: 3 Order that the subpoena issued to Roads and Maritime Services in proceedings numbered 16/381473, 16/381474 and 16/381475 filed on 23 December 2016 (Subpoena) be set aside. 4 In the alternative, order that the Prosecutor have no access to any documents produced in answer to the Subpoena.
4. The aspect of the Notice of Motion which attacked the subpoena issued to the RMS was not determined by my 2017 decision but was adjourned.
5. As a consequence of an application by the Prosecutor at the time of my 2017 decision, I stated a case to the Court of Criminal Appeal - a process by which the Prosecutor challenged my conclusions with respect to the two surviving charges. The Court of Criminal Appeal, on 21 September 2018, dismissed those challenges (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202).
6. Special leave to appeal to the High Court was refused (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] HCASL 86).
7. I subsequently heard applications made by the Prosecutor seeking leave to amend each of the surviving charges. The case mounted by the Prosecutor seeking the amendments proposed two alternatives with respect to each of those surviving charges. The preferred position advanced by the Prosecutor was that I should permit multi-count amendments to each of the remaining charges. In the alternative, the Prosecutor sought to rely on individual amended charges, each being for a single, nominated date (with the nominated dates in the two charges differing).
8. During the course of the hearing concerning the Prosecutor's proposed amendments, the Prosecutor sought leave to reopen the proceedings and to adduce further evidence - that evidence being an affidavit of Mr Alan Bradbury, the Prosecutor's solicitor, and a folder of documents exhibited to the affidavit. Although a redacted version of the affidavit was admitted (see [23] to [32] of my 2019 decision - the citation of which is given below), I did not allow the full affidavit, or any of the documents exhibited to it, to become evidence in those proceedings.
9. As part of these amendment proceedings, the Company argued that I should not permit the multi-count amendments. It also submitted that I should reject the alternative single-day charges.
10. On 27 November 2019, I handed down my decision rejecting the multi-count amendments proposed by the Prosecutor; upholding the single-count amendments; and not accepting the Company's position that the charges should be rejected in their entirety (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182 - my 2019 decision). The aspect of the February 2017 Notice of Motion attacking the subpoena issued to the RMS was also not determined by this decision but continued to remain adjourned.
11. The Prosecutor and the Company both appealed against my 2019 decision. On 6 May 2020, the Court of Criminal Appeal dismissed both these appeals (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74).
12. The consequence of these various proceedings is that the Company now stands charged with the two amended single counts for which leave to amend had been granted as the outcome of my 2019 decision.
13. That which I have set out above provides but a short summary of the relevant history to date of the present proceedings. It is unnecessary to set out any further detail in order to provide an understanding of that which is now required to be determined in these interlocutory proceedings. All that remains of the preliminary issues is to determine the fate of the subpoena issued by the Prosecutor to the RMS.

The Company's challenge to the subpoena to the RMS

1. As earlier noted, on 1 February 2017, the Company had filed a Notice of Motion seeking, inter alia, relief concerning the subpoena that had been issued by the Council to the RMS.
2. The Company's proposed orders (in the alternative) concerning this subpoena were set out in [3] and [4] of the terms of its 1 February 2017 Notice of Motion. The orders sought concerning the subpoena remain in the following terms as originally pleaded: 3 Order that the subpoena issued to Roads and Maritime Services in proceedings numbered 16/381473, 16/381474 and 16/381475 filed on 23 December 2016 (Subpoena) be set aside. 4 In the alternative, order that the Prosecutor have no access to any documents produced in answer to the Subpoena.
3. This remaining element of the February 2017 Notice of Motion is now dealt with to finality (at least at first instance) by this decision.

Planning-related provisions

1. Several provisions of the EP&A Act and of the Environmental Planning and Assessment Regulation 2000 (the Regulation) require to be noted for later consideration - these are set out below.
2. The primary provision of the EP&A Act engaged for this remaining element of these interlocutory proceedings is s 119J (as it was at 3 September 2015). This provision has earlier been set out at [8].
3. The first of the other provisions of the EP&A Act to be noted is s 121B. The provision was, relevantly, in the following terms at the date of Mr Adams issuing the s 119J notice: 121B Orders that may be given by consent authority or by Minister etc (1) An order may be given to a person by: (aa) …, or (a) a council, or (b) …, to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
4. It is not necessary to reproduce the entirety of the table referred to above. It is sufficient, as can be understood later in my summary of Prosecutor's submissions, to reproduce only that element relating to Order 12. This element was in the following terms (my emphasis):
5. The next provision of the EP&A Act to be noted is s 127A, the provision which permits establishment of a scheme for penalty notices able to be issued for breaches of the EP&A Act in some circumstances. This provision was in the following terms at the relevant date: 127A Penalty notices for certain offences (1) An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.
6. As can be seen, details of the penalty notice regime are to be established by "the regulations". The relevant clause in the Regulation is cl 284. This clause sets up the scheme and provides that penalty notices may be issued, amongst other people, by authorised council officers. The relevant portion of cl 284 was in the following terms at the relevant date: 284 Penalty notice offences (1) … (2) … (3) The following persons are declared to be authorised persons for the purposes of section 127A of the Act: (a) …, (b) …, (c) any person (including an employee of a council) who is generally or specially authorised by a council to be an authorised person for those purposes,
7. The details of the breaches (and the penalties to be attached to each of them) for the purposes of a penalty notice are to be found in Sch 5 to the Regulation. Although it is appropriate to set out the relevant element of cl 284, it is unnecessary to set out the detail contained in Sch 5. It is sufficient to observe that a penalty notice can be issued for a breach of a condition of a development consent.

Evidence-related provisions

1. The Prosecutor proposes to rely on the broad range of matters (including documents sought by this subpoena) potentially covered by three provisions of the Evidence Act 1995 (the Evidence Act) for the purposes of establishing matters relating to coincidence and tendency. The provisions are contained in ss 97, 98 and 101 of the Evidence Act. The relevant elements of these provisions are set out below: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) … 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (1A) ... (2) … 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (3) …
2. It is to be observed that the notices required by ss 97(1)(a) and 98(1)(a) have been given by the Prosecutor (in the form required by s 99 of the Evidence Act) to the Company for the proposed purpose of utilising material sought pursuant to the challenged subpoena for coincidence and tendency evidence purposes. The notice is in evidence (becoming Exhibit 3).

Government Information (Public Access) Act 2009

1. I noted, at [5], that the Prosecutor had made an application to the RMS pursuant to the GIPA Act. It is not necessary to set out any of the provisions of that legislation.

Representation

1. As it has been throughout this series of proceedings before me, Mr Ireland of counsel appeared for the Prosecutor and Mr Hale SC for the Company (leading Mr D Robertson on this aspect).

The hearing

1. The hearing of this element of the Company's motion was held on 25 June and 2 July 2020 using Microsoft Teams software because of the necessary operational constraints on the Court as a result of the COVID-19 pandemic. This hearing was conducted in accordance with the Court's COVID‑19 Pandemic Arrangements Policy.

The evidence in these proceedings

1. Documentary evidence for the Prosecutor in this element of the proceedings comprised:

• Exhibit AAB-1 to the affidavit of Mr Alan Bradbury of 28 June 2019. This document comprised the letter dated 3 September 2015 from Mr Adams to the Proper Officer of the RMS. This letter was the notice pursuant to s 119J of the EP&A Act requiring that the RMS produce a range of documents concerning the interrelationship between the RMS and the Company. The list of the documents required to be provided was earlier set out at [9]. The letter became Exhibit A.

1. The documentary evidence tendered on behalf the Company comprised:

• the Appeal Book in the proceedings in the Court of Criminal Appeal concerning the stated case arising out of the conclusions I had reached in my 2017 decision (this became Exhibit 1);
• the redacted affidavit of Mr Bradbury affirmed 28 June 2019 which had been before me during the course of the hearings leading up to my 2019 decision (this became Exhibit 2);
• the letter dated 14 May 2020 from Mr Bradbury to Mr Harrison, the Company's solicitor, giving notice pursuant to s 99 of the Evidence Act that the Prosecutor intended to seek to adduce evidence for tendency and coincidence purposes for each of the prosecutions (this became Exhibit 3); and
• a letter from a paralegal at the RMS, dated 29 September 2015, being a response to the letter from Mr Adams tendered on behalf of the Prosecutor (this reply became Exhibit 4). This letter also had appended to it a schedule of information held by the RMS and a chain of e-mail correspondence between Mr Adams and a lawyer employed by the RMS.

1. Exhibit 1 included a number of affidavits which had been admitted in this Court in the proceedings before me leading to the stated case proceedings before the Court of Criminal Appeal. Because of their tender in Exhibit 1, they were not separately read during the course of these subpoena challenge proceedings. Two of those affidavits (by Mr Adams and Mr Adrian Walsh, the RMS Project Manager) were referred to in submissions in these subpoena proceedings and will later require some consideration in detail.
2. However, two further affidavits were read in these proceedings. The first of them was an affidavit of Mr Bradbury of 23 June 2020, read on behalf of the Prosecutor. It is appropriate to note that paragraphs 2 and 3(c), and the column in Annexure A to this affidavit headed "119J notice", were not before me as a consequence of the first of these three elements not being read by the Prosecutor and the second and third of the elements being rejected by me.
3. The second affidavit, read on behalf of the Company, was an affidavit of 6 August 2019 of Mr Claude Sibaud, the Group Assets, Plant and Equipment Manager of the Company's parent company. This affidavit was read without objection.
4. Mr Bradbury and Mr Sibaud were not required for cross-examination.

Introduction

1. At the commencement of this decision, I gave a brief outline as to how it has become necessary for me to consider the decision of the High Court in EPA v Caltex.
2. EPA v Caltex was a matter which originated from this Court, being a matter where Stein J referred a stated case containing seven questions to the Court of Criminal Appeal arising from a prosecution of Caltex by the Environment Protection Authority (the EPA).
3. By way of background, it is appropriate to note that one of the matters required to be considered by the High Court, on appeal from the decision of the Court of Criminal Appeal on the stated case, arose from the fact that the EPA had issued a statutory notice to Caltex seeking information relevant to matters giving rise to the prosecution of Caltex; and had also issued a notice to produce to Caltex, seeking essentially the same material after the prosecution had commenced. Of the questions referred in the stated case, Question 5 addressed the propriety of this dual information-seeking approach.
4. Question 5 was in the following terms: 5 Whether the service by the (appellant) of a notice to produce on (the respondent) on 26 April 1991 to produce the same documents referred to in the notice under s.29(2)(a) of (the Act) should be set aside as an abuse of the process of the court.
5. The plurality of the High Court determined that the answer to this question was "No".

The invitation for further submissions

1. As I was of the view that the High Court's answer to Question 5 was potentially significantly relevant (by analogy) to the matters required to be addressed in these proceedings, on Thursday 27 August 2020, I had my Associate communicate with the legal representatives of the Company and the Prosecutor in the following terms: Dear Mr Bradbury and Mr Harrison His Honour has asked me to advise you that preparation of his judgment on the outstanding elements of the Company's 1 February 2017 Notice of Motion (concerning the subpoena issued to the RMS) is significantly advanced. During the course of his Honour's consideration, he has read the decision of the High Court in EPA v Caltex (1993) 178 CLR 477 where the plurality's determination concerning Question 5 (of the stated case originally from this Court) appears to his Honour to have potential relevance, by analogy, to the matters here requiring determination. As a consequence, his Honour has carefully reread the written submissions provided to him and that portion of the transcript (2 July 2020) which he has had taken out. No mention, as far as his Honour can see, has been made of this High Court decision. His Honour has asked me to indicate that, if either party wishes to provide him with submissions concerning this point from EPA v Caltex, his Honour would be happy to receive them to assist him in finalising his decision. Any submissions which Mr Hale SC might wish to make concerning the High Court's decision should be a maximum of five pages in length and provided by e-mail to me and to the representatives of the Prosecutor by no later than the close of business on Friday 4 September 2020, with any submissions from Mr Ireland in reply to be provided by the close of business on Friday 11 September 2020. Any submissions provided are subject to a maximum length of five pages in 12-point Arial font and are to be provided as Word documents.
2. On 2 September 2020, my Associate received the following e-mail response from the Company's legal representatives: We refer to your e-mail attached below dated 27 August 2020. Counsel for the defendant have considered the judgment delivered in EPA v Caltex (1993) 178 CLR 477. So as to ensure the submissions made on behalf of our client respond to the relevant part of the judgment referred to by His Honour, we would be grateful if His Honour could indicate more precisely which passages in the judgment His Honour considers have potential relevance to the matters requiring determination.
3. On my instructions, the following reply was sent (copied to the Prosecutor's legal representatives): His Honour had me set out, in the first paragraph of my e-mail, the matter he thought should be addressed - the determination concerning Question 5 of the stated case and the judgements of the plurality concerning it and what application (if any) might arise in that context for consideration in these proceedings.
4. The supplementary submissions concerning Question 5 are dealt with below.

The Company's submissions on EPA v Caltex

1. As no submissions on behalf of the Company had been received by 8.30 am on Monday 7 September 2020, I had my Associate send a further e-mail to the Company's legal representatives (copied to the Prosecutor's legal representatives). That e-mail was in the following terms: As no submissions have been received on behalf of Tropic Asphalts Pty Ltd, as at 8.30 this morning, in response to his Honour's invitation concerning EPA v Caltex, his Honour assumes that the company does not wish to be heard on this point. His Honour will await such submissions as may be made on behalf of the Prosecutor prior to finalising his decision.
2. No reply was received to this further e-mail prior to 2.23 pm on 8 September 2020 when the matters were listed for decision the following afternoon. At 6.00 pm that evening, submissions were received from the Company's legal representatives addressing EPA v Caltex.
3. Although well out of time and sent without explanation for the delay, it would be inappropriate not to consider these submissions. As these are commendably brief, they are set out in full below (footnotes omitted): 1 The Court has invited submissions on the application of the decision of the High Court in Environmental Protection Authority v Caltex Refining Co. Pty. Ltd. (1993) 178 CLR 477 (EPA v Caltex) to the matters for determination in the present matter, insofar as the decision concerns question 5. That question was whether a notice to produce issued by the prosecutor in that case should be set aside as an abuse of process of the court. 2 Before addressing EPA v Caltex, it is appropriate to identify the basis upon which the defendant submitted that the subpoena should be set aside in its entirety. In summary, the submission was that the subpoena had not been issued by the Prosecutor for the bona fide purpose of obtaining relevant evidence, but rather for the impermissible purpose of having the RMS produce the documents as an "insurance policy" in the event that the Court were to find that any documents obtained from the RMS pursuant to the s119J Notice had been unlawfully or improperly obtained. At the time of the issue of the subpoena the Prosecutor believed that the documents had been unlawfully obtained, and, no doubt for this reason, it did not disclose either to the Court or to the defendants that it had them. 3 Fundamental to the defendant's submissions is that the Prosecutor obtained documents from the RMS pursuant to a notice that was invalid or it believed at the time of the issue of the subpoena to be invalid and that, therefore, the Prosecutor unlawfully obtained the documents from the RMS or believed that it had unlawfully obtained them. 4 For the reason identified by the Prosecutor in paragraph 2 of the Further Submissions for the Prosecutor dated 8 September 2020, EPA v Caltex is distinguishable on the facts. It is also distinguishable for the following reasons: (a) In EPA v Caltex, the EPA never obtained the documents, whereas in the present case, documents had already been obtained by the Council. (b) In the present case, at the time the subpoena was issued, the Prosecutor believed that the documents it had obtained in answer to the s119J Notice had been unlawfully obtained. (c) In the present, the Prosecutor commenced its prosecution and issued the subpoena notwithstanding its belief that evidence had been unlawfully obtained pursuant to the s119J Notice. This is the defendant's complaint; that issuing the subpoena was an abuse of process and lacked a legitimate forensic purpose. 5 In EPA v Caltex, as noted by Mason CJ and Toohey J at page 489, there was no dispute between the parties that the notice to produce was validly issued. It is apparent that the remaining members of the Court other than Brennan J proceeded on the same understanding. As a consequence, no members of the Court gave consideration to the circumstances in which issuing a notice to produce (or subpoena) would be an abuse of process, which was the issue raised by question 5. 6 This is a further reason why the reasoning in EPA v Caltex is not applicable in the present case, because the issue raised by the defendant in the present case is squarely whether the issue of the subpoena in the circumstances constitutes an abuse of process and should be set aside.

The Prosecutor's submissions on EPA v Caltex

1. The Prosecutor's initial submissions concerning Question 5 in EPA v Caltex were received on the morning of 8 September 2020 after my Associate's e-mail (at [57]) was sent to the parties' legal representatives. As these initial submissions are also commendably brief, it is appropriate to set them out in full. These submissions are: 1 In Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 (EPA v Caltex) the High Court considered, amongst other things, the validity of a notice to produce served by the EPA, on the Defendant, in circumstances in which the Prosecutor had also issued a statutory notice in identical terms, also to the Defendant. 2 The factual scenario considered in EPA v Caltex is therefore distinguishable from the situation here in which the Prosecutor, has issued a statutory notice and subpoena to a third party, the RMS. 3 However, the result in the case assists the Prosecutor by reason of the High Court's answer to Question 5. 4 In this regard, part of Tropic Asphalt Pty Ltd's case apparently seeks to impugn the Prosecutor, Snowy Monaro Regional Council, for issuing a subpoena to the RMS to seek the same documents it sought in the earlier statutory notice it issued to the RMS [Defendant's outline of submissions filed 16 June at paragraphs 3(a); 53- 58]. 5 The High Court's findings in EPA v Caltex makes it apparent that the mere fact that a notice to produce is issued following up on and seeking identical production to a statutory notice is not an abuse of process [Mason CJ and Toohey J at 56-58; Deane, Dawson and Gaudron JJ at 44- 50]. 6 The High Court's findings support the Prosecutor's original submissions at [10 and 20-23] that there is no principle of law that causes a subpoena which seeks production of a document obtained from another source to be lacking in a legitimate forensic purpose or issued for an improper purpose. Indeed, the case supports a finding to the contrary. 7 The subpoena to RMS is one issued to a third party, so the principle against self- exposure to a penalty (Brennan J, the only Judge in dissent in relation to the answer to Question 5) is not relevant to the present case.
2. Because the Company's submissions on EPA v Caltex (at [59]) were well out of time (and sent without any explanation whatsoever for the delay), I considered it appropriate to permit the Prosecutor to file submissions in reply (in addition to the more general submissions set out above).
3. In response to my affording the Prosecutor this right of reply to the Company's submissions on EPA v Caltex, further short submissions were received from the Prosecutor on 10 September 2020. These are set out in full below: 1 The Prosecutor has in earlier written and oral submissions made its response to the submissions repeated in Defendant's Submissions dated 8 September 2020 (DS) at [2]. The only inference available on the evidence presently before the Court is that the subpoena was issued by the Prosecutor for the legitimate forensic purpose of adding to the body of evidence admissible at trial in these proceedings. The perceived susceptibility to legal challenge of the earlier statutory notice is not relevant to the drawing of that inference, as the object secured by the issue of the subpoena was the production of a body of relevant and admissible documentary material. 2 In response to DS [2], [3] and [4], a party's forensic doubt as to whether it has obtained evidence, or admissible evidence, from another source or by another means (here an earlier statutory notice) has never been held to be relevant to the determination as to whether the subpoena seeking apparently relevant documents has a legitimate forensic purpose. No authority can be found supporting this submission of the Defendant, and none is cited by the Defendant. The submission of the Defendant would lead this Honourable Court into error, if accepted. 3 Potentially, a subpoena and the documents produced pursuant to it could become infected or tainted by illegality themselves if a party has only become aware of the existence of the documents sought in it through illegality. However, no such finding is open here, as the evidence establishes that by reason of the RMS officer Mr Walsh, and the GIPA documents (exhibited to the Adams affidavit) the Prosecutor knew of the existence and apparent relevance of all the categories of documents sought in the subpoena by perfectly lawful means. 4 In any event, the s119J notice, as has been submitted, was always lawful as established by Mansfield in the CCA, so no question of the subpoena being tainted by illegality can arise. Even if (contrary to the evidence) the sole source of the Prosecutor's knowledge of the existence of the categories of documents subpoenaed was that notice, this would not deprive the subpoena of legitimate forensic purpose, the notice being lawful. 5 The Prosecutor demurs from the Defendant's total rejection of any relevance in EPA v Caltex at DS [5] and [6] to the extent that it would give no content to the High Court's answer to Question 5, although the Prosecutor, with respect, agrees that the validity of the notice was not in contest as explained at ((1993) 178 CLR 477 at 489.7). Even though there is no specific reasoning attributed by the High Court to Question 5, it can be inferred that, if there was any principle that a notice to produce was an abuse of process merely for seeking production of the same documents as in an earlier statutory notice, the answer to Question 5 given by the majority would presumably not have been given. However, the Prosecutor accepts that the facts are quite different to the present.

Consideration

1. That with which I am dealing in these proceedings is whether or not, on the Company's case, the obtaining of documents pursuant to the s 119J notice when coupled with the subsequent issuing of a subpoena to the Company after the commencement of the prosecutions against the Company constituted an abuse of process. The Company has proposed, by the terms of the orders sought (see [28]), that the subpoena should be set aside on this basis. In the alternative, the Company proposes that the information to be provided to the Prosecutor should be limited to that relating to the two dates nominated in the charges remaining against the Company.
2. This portion of my decision addresses the first of these propositions - the proposed limiting of information is, later, separately dealt with.
3. In this context, it is appropriate to set out some background information to provide an understanding as to the basis upon which the Company submits that the Prosecutor was motivated by an improper purpose for issuing the now challenged subpoena. The background relates to a challenge in this Court to subpoenas issued founded on a notice issued pursuant to s 119J by Port Macquarie-Hastings Council.
4. Port Macquarie-Hastings Council commenced two prosecutions against a Mr Mansfield for breaches of the EP&A Act. Port Macquarie-Hastings Council issued subpoenas, in each matter, to two third parties. Mr Mansfield applied to the Court to set aside all of these subpoenas. The application to set aside the subpoenas was heard by Sheahan J. As his Honour noted, at [15] of his decision (Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107), he was being asked to adjudicate on the validity of the subpoenas which had been issued and was not addressing issues of access to, or admissibility as evidence of, any material produced pursuant to any of these subpoenas. That, as he observed, would await the substantive hearing of the charges.
5. That position is also here applicable.
6. Mr Mansfield's legal representatives attacked the subpoenas on a range of grounds. Of those grounds, the final one was that they amounted to an abuse of process because of the inappropriate reliance on information obtained by use of coercive investigation powers in the EP&A Act (at [16] of his Honour's decision).
7. It is unnecessary to undertake a detailed analysis of his Honour's reasoning; it is sufficient to note that his Honour determined that the subpoenas should be set aside. In the context of the present controversy, it is sufficient to set out the terms of [317] of his Honour's decision. This paragraph was in the following terms: 317 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".
8. I interpose to note that the reference to Zhang is to the decision of Preston CJ in Zhang v Woodgate and Lane Cove Council (2015) 208 LGERA 1; [2015] NSWLEC 10 (Zhang) - a case to which I need give no detailed attention. It is, however, appropriate to note that Sheahan J's decision was set aside by the Court of Criminal Appeal in Port Macquarie-Hastings Council v Mansfield (2019) 239 LGERA 240; [2019] NSWCCA 7 (Mansfield - CCA) - a decision which I will later need to address in a little detail.
9. The Company's primary written submissions (filed 16 June 2020), setting out the basis upon which the Company said the subpoenas should be set aside, summarised, at [34], the elements of the affidavit of Mr Bradbury of 28 June 2019. A redacted version of this affidavit had been in evidence before me for the purposes of my 2019 decision and was also tendered for the purpose of dealing with this application to set aside the subpoenas to the RMS (becoming Exhibit 2 on this resumed motion). The summary of what the Company said, with respect to what were considered to be the relevant elements from Mr Bradbury's affidavit, were: 34 In his affidavit, Mr Bradbury stated inter alia: (a) He is the solicitor on the record for the prosecutor (paragraph 1). (b) On 3 September 2015, the prosecutor issued a notice to provide information and records to RMS under s 119J of the EP&A Act (paragraph 3); (c) In response to the notice, RMS produced a number of business records, including delivery documents (which were exhibited at pages 5-491 of Exhibit AAB-1). The delivery dockets each have an identifying 'weighbridge ticket number' and record the weight in tonnes of each delivery, as well as the progressive weight of the material delivered each day (paragraph 4). (d) In response to the notice, RMS also produced a number of other business records, entitled 'Asphalt Paving - Mix Locations' (which were exhibited at pages 492-513 of Exhibit AAB-1). Those documents record, amongst other things, the asphalt supplier, docket number and tonnes of asphalt supplied on particular dates (paragraph 7). (e) The prosecutor "will rely on the documents" as part of the prosecution brief at any trial of the proceedings (paragraph 8). (f) The delay in adducing this evidence was due to "the recent change in the law on s 119J notices effected by the Court of Criminal Appeal's decision in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7, which was published on 25 February 2019" (paragraph 10).
10. The element referred to in (f) above was to [10] of Exhibit 2, a paragraph in the following terms: 10 The delay in adducing this evidence (in relation to the amendment hearing) is due to the recent change in the law on section 119 J notices effected by the Court of Criminal Appeal's decision in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7, which was published on 25 February 2019, with an application for Special Leave to the High Court of Australia from that decision of the CCA is still pending as at the date of this affidavit.
11. The Company's written submissions subsequently said, relevant to the above matters, at [49] (identifying what were two assumed reasons) and [50] to [54] (setting out those assumed reasons), as follows: 49 The prosecutor has the onus of establishing that the subpoena to RMS has some legitimate forensic purpose. The defendant does not know what the prosecutor identifies as the legitimate forensic purpose or purposes for issuing the subpoena to RMS. However, in light of the matters stated in the Bradbury Affidavit (summarised above), the defendant submits that the subpoena to RMS lacks any legitimate forensic purpose, for at least two reasons. 50 First, assuming what is stated in the Bradbury Affidavit is true and correct, RMS has already produced to the prosecutor all relevant documents in its possession pursuant to the purported s 119J notice issued to RMS in September 2015. 51 In particular, the categories of documents sought by the purported s 119J notice (set out in paragraph 35 above) were wider and more extensive than the categories of documents sought by the subpoena (set out in paragraph 21 above). Therefore, it is reasonable to assume that any documents that RMS has produced in response to the subpoena have already been produced by RMS in response to the purported s 119J notice in 2015. 52 Therefore, in those circumstances, there cannot have been any legitimate forensic purpose for the prosecutor to issue the subpoena to RMS, because it cannot be "on the cards" that RMS will produce any new or additional material in response to the subpoena that would materially assist the prosecutor's case. Rather, it is reasonable to expect that RMS will produce exactly the same documents that it previously produced to the prosecutor, which will not provide any new or additional material to assist the prosecutor's case against the defendant. For this reason, the subpoena lacks any legitimate forensic purpose. 53 Second, the matters stated in the Bradbury Affidavit make clear that the subpoena to RMS was not issued for the bona fide purpose of obtaining relevant evidence, but rather as a fall-back or "insurance policy" for the prosecutor in the event that the documents produced by RMS in response to the purported s 119J notice were held at the trial to be unlawfully or improperly obtained and therefore inadmissible (per s 138 of the Evidence Act 1995). 54 In paragraph 10 of his affidavit, Mr Bradbury stated that the reason for the delay in adducing the documentary evidence produced by RMS in response to the purported s 119J notice was due to "the recent change in the law on s 119J notices effected by the Court of Criminal Appeal's decision in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7, which was published on 25 February 2019".
12. The Prosecutor's legal representatives were clearly concerned that Sheahan J's decision was equally applicable to the s 119J notice issued by Mr Adams on 3 September 2015.
13. The question of what impact, if any, this concern should have on the subpoena to the RMS issued in these two remaining proceedings arises for my consideration on these remaining interlocutory issues.
14. In this context, it is appropriate to note that the factual circumstances and legal issues underpinning the High Court's decision in EPA v Caltex differ from that which here arise. The primary issue required to be dealt with in EPA v Caltex concerned whether a corporation should be afforded protection from self‑incrimination - a matter which is here irrelevant. However, there is a broad parallel between the question in EPA v Caltex of issuing a statutory notice to provide documents/information and the coincident issuing of a notice to produce to provide the same documents/information and the position here arising.
15. This issue, entirely separate from the primary matter dealt with by the High Court in EPA v Caltex, is the focus of the present controversy in these proceedings.
16. For the purposes of considering whether or not Question 5 of the High Court's decision in EPA v Caltex provides an answer to the contentions raised by the Company, it seems to me that the issue of the validity of the s 119J notice is a matter of irrelevance. What does require consideration, is the duality of approach by the Prosecutor and whether or not such duality constituted an abuse of process.
17. The question of whether or not documents obtained pursuant to the s 119J notice are inadmissible or not is a question that will arise for consideration by the trial judge (if objection is taken at the time any documents obtained pursuant to that notice are sought to be tendered).
18. I am satisfied that the answer to Question 5 given by the High Court in EPA v Caltex is not only relevant in these proceedings but is also determinative, by analogy, of the remaining elements of the Company's Notice of Motion. In this regard, I generally accept the submissions of the Prosecutor (as set out at [60]) and the later ones in reply to those of the Company (as set out at [62]).
19. In addition, the dual information-gathering process initiated by the EPA in EPA v Caltex and that initiated by the Prosecutor in these proceedings is functionally the same but, in this instance, operating at a more diffuse level of principle. Because the EPA's processes were directed at the defendant in those proceedings, issues of self-incrimination (the primary basis of the stated case and the High Court's consideration of the other questions involved) does not here arise.
20. In these proceedings, the s 119J notice and the subpoena have not been issued to the Company but have been issued to the RMS, thus being third-party requirements for production of documents to the Prosecutor. The absence of that potential self-incrimination aspect in these proceedings fortifies me in the view that the High Court's reasoning in reaching its answer to Question 5 is, by analogy, entirely applicable in these proceedings.
21. The notice issued to Caltex pursuant to s 29(2)(a) of the Clean Waters Act 1970 is on all fours with the s 119J notice here issued to the Company. As a matter of procedural principle, a notice to produce and a subpoena are treated as being the same for the purposes of challenges such as this (Regina v Saleam [1999] NSWCCA 86 per Simpson J at [11]).
22. As McHugh J observed in EPA v Caltex at 558 and 559: Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power "would give such a party advantages which the rules of procedure would otherwise deny him" (Pioneer Concrete, (1982) 156 CLR, per Gibbs CJ at p.468.). But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.
23. There is nothing in these proceedings that could found a conclusion that that which is sought by the Prosecutor falls within the exception noted toward the end of the above quoted passage.
24. The parallels between the two cases are self-evident. In circumstances where there is no potential taint of self-incrimination (a taint, in any event, held not to be relevant by the plurality of the High Court in EPA v Caltex) is absent when the dual procedures are invoked by being addressed to a third party information provider.
25. The first of the remaining elements of the Company's Notice of Motion of 1 February 2017 therefore must be rejected on the basis of this High Court authority.
26. However, if I am wrong in reaching this conclusion on the basis of applying EPA v Caltex by analogy, I now turn to address the other matters in play arising from the hearing on 25 June and 2 July 2020.

The Court of Criminal Appeal's decision in Port Macquarie-Hastings Council v Mansfield

1. In Mansfield - CCA, the Court of Criminal Appeal dealt with an appeal by that council against Sheahan J's decision, addressing the question of whether or not a notice issued pursuant to s 119J of the EP&A Act could be used to obtain documents that provided, amongst other things, a basis for determining whether a prosecution might be commenced for a breach of that Act and, if so, whether the material so obtained could potentially be used as evidence in any criminal proceeding subsequently commenced.
2. During these proceedings before me, the Company has foreshadowed that, at trial, it will submit that the particular circumstances concerning the notice issued to the RMS resulting in documents being provided to the Prosecutor regarding the Company's activities are to be distinguished from the circumstances considered in Mansfield - CCA. For these purposes, I am dealing, amongst other matters, with whether or not the documents produced pursuant to the s 119J notice can provide a proper foundation for the subpoena and, if they cannot, what other ground(s), if any, can provide a foundation for the subpoena. I am expressly not dealing with any matters relating to admissibility at trial.

A comparison of the information produced

1. Mr Bradbury's affidavit of 23 June 2020 had annexed to it a table which comprised his analysis of the difference between that which was sought from the RMS by the contested subpoena (on one hand) and the nature of the information which had been provided by the RMS pursuant to the s 119J notice and pursuant to the GIPA Act application. That affidavit and the accompanying table also addressed the material provided by the RMS in response to the s 119J notice.
2. When the Prosecutor sought to rely upon Mr Bradbury's affidavit of 23 June 2020, Mr Hale objected to it, primarily on the basis that the body of the affidavit (and the table that formed Annexure A to it) referred to documents which had been obtained from the RMS pursuant to the s 119J notice. As earlier noted, the terms of that notice were in evidence as Exhibit A. The elements of the affidavit and its annexed table addressed, inter alia, the documents produced pursuant to the s 119J notice - documents which had not been served by the Prosecutor on the Company's legal representatives.
3. Mr Hale then made a call for the production of those documents. The Prosecutor indicated that the call would be met and the documents provided to the Company's legal representatives. Given, however, that these proceedings were being conducted in a virtual courtroom using the Microsoft Teams software, immediate physical or electronic production of the documents was not possible.
4. Mr Hale submitted that, if I was to permit the Prosecutor to rely on Mr Bradbury's affidavit in its entirety (despite the Company's objection to matters relating to documents produced pursuant to the s 119J notice), it would be necessary for the proceedings to be adjourned to permit examination of the documents that were to be provided pursuant to his call. He also indicated that he would require Mr Bradbury for cross-examination.
5. In order to permit this challenge to the subpoena to the RMS to continue, I rejected the element of Mr Bradbury's affidavit that referred to the s 119J notice and to the column in the annexure referring to the documents produced pursuant to that notice. That ruling removed, for the purposes of these proceedings, any prejudice to the Company and, thus, removed the necessity for an adjournment. The ruling also caused Mr Hale to indicate that he would not need to cross-examine Mr Bradbury.
6. A copy of the elements of the Annexure A table that were admitted is reproduced below: Subpoena GIPA 1 A copy or original of the contract entered into between the Defendant and Roads and Maritime Services (RMS) in relation to the supply of asphalt by the Defendant for work order 061 in relation to the Snowy Mountains Highway and Kosciusko Road Project (the Project), from 20 January 2015 to 18 March 2015 RMS produced a redacted version of the contract omitting the "rate" in Column 1 and some of the items in the column headed "Amount". The total estimated costs is redacted (see Exhibit MA1 page 122 to the affidavit of Mark Adams dated 14 December 2018 in the Prosecution Brief). 2 A copy or original of each completed daily 'quantity agreement sheet' for each active site on the Project which received asphalt from the Defendant in the period 20 January 2015 to 18 March 2015 (being the 'quantity agreement sheets' identified at par 12 in the affidavit of Adrian Leslie Walsh, Works Manager for the Project sworn 31 October 2016). RMS produced a redacted version of the 'quantity agreement sheets' and proforma invoices which relate to them. In some quantity agreement sheets the "Rate 1" information is redacted while in others the columns headed "Est. Qty 2", "Units 2" and "Amount 4" have been redacted. See Exhibit MA1 pages 156 to 197. 3 A copy of the original or copies of all delivery dockets attached to each 'quantity agreement sheet' sought in paragraph 2 of this subpoena above. Not produced under GIPA - identified for release under review decision but objected to by Tropic and the subject of NCAT Proceedings. 4 Without limiting any of the paragraphs of this subpoena above, the 'quantity agreement sheets' on which the quantities contained in Mr Walsh's e-mail attached as Annexure 4 to his affidavit sworn 31 October 2016, were based. See 2 above - RMS produced a redacted version of these documents

The Company's submissions on the s 119J notice-obtained documents

1. Mr Hale submitted that, whatever the content of the documents which the Prosecutor had obtained from the RMS pursuant to the s 119J notice, those documents had not been validly obtained by the Prosecutor and that, as a consequence, the subpoena being founded on those documents was necessarily tainted and were to be set aside. The basis upon which this submission was made was as follows: 1. First, the date upon which the s 119J notice was issued to the RMS was 3 September 2015. This was the date on the face of the notice (Exhibit A). (It is to be remembered, at this point, that the s 119J notice was issued by Mr Mark Adams, an officer of the Prosecutor holding - at that time - the position of Planning Manager.) The notice informed the recipient that Mr Adams was an authorised investigation officer appointed pursuant to the EP&A Act (this was set out in the third paragraph of the notice and has not been contested by the Company). 2. Second, the affidavit of Mr Sibaud provided evidence, at [10] and [11], that all activities that had been undertaken by the Company in the Prosecutor's local government area had ceased by the middle of May 2015. The result was that the mobile asphalt batching plant had been removed from the Prosecutor's local government area some three‑and‑a‑half months prior to Mr Adams issuing the s 119J notice. This evidence from Mr Sibaud was uncontested. Mr Hale submitted that the result was, therefore, that there were no remaining regulatory actions which the Prosecutor could contemplate taking against the Company. This meant that there was no regulatory foundation in the EP&A Act available to the Prosecutor as a basis for the s 119J notice. 1. Third, the powers of investigation conferred on Mr Adams were those set out in s 119C(2) of the EP&A Act. These powers were to be contrasted, Mr Hale submitted, with the investigation powers given to departmental officers by the immediately preceding element in s 119C(1). These two elements of the statutory provision, at the relevant time, were in the following terms: 119C Purposes for which powers under Division may be exercised (1) A departmental investigation officer may exercise powers under this Division for any of the following purposes: (a) enabling the Minister or the Secretary to exercise their functions under this Act, (b) 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, (c) obtaining information or records for purposes connected with the administration of this Act, (d) generally for administering this Act. (2) A council investigation officer may exercise powers under this Division for any of the following purposes: (a) enabling a council to exercise its functions under this Act, (b) at the request of the Commissioner of Fire and Rescue NSW, determining whether or not adequate provision for fire safety has been made in or in connection with a building. (3) Nothing in this Division affects any function under any other provision of this Act or under any other Act. Mr Hale contrasted the element of the provision vesting powers in departmental officers for the purpose of "determining whether there has been … a contravention of … any … consent" with the absence of such an express power being provided for officers of local government councils. 1. Fourth, as it was uncontested that the Company's plant had been removed from, and no Company activities were being conducted within, the Prosecutor's local government area, nothing potentially encompassed by s 119C(2)(a) provided any proper basis upon which Mr Adams could validly issue any s 119J notice on 3 September 2015. 2. Fifth, this submission was undoubtedly correct, he said, on the basis of the decision of the Court of Criminal Appeal in Mansfield - CCA and its analysis upholding the correctness of the approach taken by Preston CJ in Zhang. 3. The process of reasoning disclosed by Mansfield - CCA in upholding the validity of the s 119J notice there being considered was necessarily predicated on the fact that, at the time that the investigation officer for that council issued that contested notice (upon which the subpoenas there subject to challenge were issued), there were still physical manifestations of Mr Mansfield's conduct which provided a valid basis for the s 119J notice in those circumstances - circumstances which were entirely absent in the present context. 4. Sixth, Mr Hale submitted that the only reason why the subpoena was issued was in order to seek to legitimise the use by the Prosecutor of the documents otherwise impermissibly obtained pursuant to the s 119J notice. The evidence for this proposition, he put, was contained in [10] (reproduced earlier at [72]) of Mr Bradbury's affidavit of 28 June 2019, a document (in redacted form) that was now Exhibit 2 on this motion.

Penalty notices as a basis for a s 119J notice

1. Mr Hale addressed the question of whether or not, for the purposes of s 119J, the notice sent by Mr Adams on 3 September 2015 could be regarded as being potentially for the purposes of issuing a penalty notice. Mr Adams' power to act as an investigation officer is not questioned - merely whether, in the light of the decision of the Court of Criminal Appeal in Mansfield - CCA, there was any proper statutory basis for issuing the s 119J notice.
2. Mr Hale provided supplementary written submissions in light of what was said in [85] of Mansfield - CCA as to what were potentially relevant functions of a council that could give rise to the exercise of an investigation power pursuant to s 119C(2) of the EP&A Act. The particular paragraph in Mansfield - CCA was in the following terms: 85 Accordingly, s 119C(2)(a) empowered Mr Henderson to utilise the powers granted to investigation officers by s 119J, to enable the Council to exercise its powers, authorities and duties under the Act. Relevantly, they included: • Acting as a "relevant planning authority" in respect of environmental planning instruments, for the purpose of environmental planning in its local government area: Division 4 of Part 3 Environmental Planning Instruments; and • Acting as a "relevant planning authority" in respect of development control plans: Division 6 of Part 3; and • Acting as a "consent authority" in relation to development applications: under Part 4 Development Assessment; and • Acting as a "certifying authority'' under Part 4A for the certification of developments; and • Making specified orders under Division 2A of Part 6 Implementation and enforcement, including orders under s 121B(1), to "cease carrying out specified building work or subdivision work" in circumstances where "(a) Building work or subdivision work is being carried out in contravention of this Act" and to rectify breaches; and • Issuing certain penalty notices under s 127A.
3. It is with respect to the listing of the final item of those set out above that Mr Hale submits that the observation is obiter dicta and, in his submission, incorrect.
4. Before turning to set out his submissions on this point, it is appropriate to note that there is no dispute that, as at the date of the issuing of the s 119J notice, it would have been open to an authorised officer of the Prosecutor to have issued a penalty notice to the Company had there been some proper basis for this to occur.
5. Mr Hale submitted that the function of the Prosecutor, with respect to penalty notices, was confined to authorising those of its servants who were to be officers appointed with the power to issue such notices. He advanced the proposition that, the Prosecutor having exercised that function, it had no further role to play with respect to the issuing of such notices. Issuing of penalty notices, he said, was a function carried out by the individual authorised officer in a personal capacity. The consequence of this was, as I understood him, that Mr Adams could not issue a s 119J notice on behalf of the Council, even if he was contemplating issuing a penalty notice to the Company, because he would be issuing such a penalty notice in a personal capacity rather than on behalf the Prosecutor.
6. Finally, Mr Hale proposed that, in light of the fact that the documents obtained pursuant to the s 119J notice were impermissibly obtained, the subpoena was to be categorised properly as being a "fishing expedition" and, on that basis, warranted being set aside for that reason (citing Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 (Chidgey) at [64] where Regina v Saleam [1999] NSWCCA 86 at [11] was referenced with approval).
7. Mr Hale submitted that, as the overall consequence of all of the above, the only conclusion open to be drawn was that the subpoena had been issued for an illegitimate purpose and was to be set aside.

The Company's fall-back position

1. The Company's fall-back position, however, was one arising from the potentiality that I might find there was some proper basis for the Prosecutor accessing material produced by the RMS in response to the subpoena.
2. This fall-back position for the Company was that the only material to which the Prosecutor should have access was the material that related to the days specified in the two surviving charges, those days being 6 February 2015 (the date of the charge concerning Condition (4)) and 18 March 2015 (the date of the charge concerning Condition (6)).
3. This submission was based on the proposition that there was no legitimate forensic purpose demonstrated why the Prosecutor should have access to material wider than the specific days relied upon in each of the charges. Any issue of access needed to be considered in light of the specific terms of the charges as they were presently framed. Access on any unconstrained basis was unwarranted by the terms of the charges.

The Prosecutor's submissions

1. The Prosecutor submitted that at the time that the subpoena was issued, being on 23 December 2016, there was a reasonable basis beyond speculation that the requests contained therein would assist the Prosecutor. That belief was founded on: 1. the s 119J notice material; and 2. the GIPA Act material.
2. The Prosecutor submitted that each of these was a sufficient, separate source of validity for the subpoena.
3. The Prosecutor also submitted that the material contained at [14] of Mr Adams' affidavit (at folios 64, 65 and 66 of Exhibit 1) provided a further proper basis for the issuing of the subpoena. This element of Mr Adams' affidavit comprised the setting out by him of what he observed during a site inspection on 3 February 2015 and conversations he had, during the course of that site inspection, with a man named "Alan" who described himself as the Plant Manager. It will later be necessary to return to some detail of elements of these conversations.
4. Paragraph 4 of the subpoena was also supported in terms of legitimate forensic purpose by Annexure 4 (at page 419 of Exhibit 1) to Mr Walsh's affidavit taken together with the relevant portion of that affidavit.
5. It is to be noted, I interpose, that it will be necessary, in my consideration of the competing positions, to turn in some detail to Mr Adams' and Mr Walsh's affidavits (and the material appended to them) to which the Prosecutor was referring.
6. The Prosecutor drew attention to the fact that material contained within Exhibit 1 (attached to Mr Adams' affidavit) contained redacted elements. Of particular importance, he said, was the contract between the Company and the RMS.
7. The Prosecutor did not cavil with the description of the GIPA Act application as set out by Mr Hale at [8] to [12] of his written submissions (as earlier set out by me at [5]). The Prosecutor submitted that the body of material available as a result of the GIPA Act application-produced documents was sufficient in and of itself to provide an adequate independent basis for the issue of the subpoena. As a result, the subpoena would survive any potential ruling of unlawfulness with regard to the s 119J notice.
8. The Prosecutor relied upon Botany Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 and National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 as authority for the propositions that the whole or core purpose for the issue of a subpoena was to seek apparently relevant material. It was likewise an a fortiori case for the existence of a legitimate forensic purpose for the search of material to be admitted as evidence. Exhibit 3 confirmed that achieving this purpose had always been the intention of the Prosecutor.
9. The Prosecutor sought the delivery documents as they demonstrated the quantity of asphalt recorded each day.
10. The Prosecutor then elaborated (Transcript 2 July 2020, page 16, lines 19 to 40): So, this information alone formed a legitimate forensic basis or gave rise to a legitimate forensic purpose, a reasonable basis beyond speculation, for the prosecutor identifying that it was proper for it to seek the quantity agreement sheets and the delivery dockets, combined amongst other information with, for example, the material at annexure 5 to the Walsh affidavit, at court book 419, which showed that on those particular days there were breaches of the 150 ton a day requirement and that's on - let me count them - I think 11, those 11 days listed at court book 419 in annexure 5 to the Walsh affidavit. That, combined of course with what the prosecutor had been told by Allan, the plant manager, the defendant's plant manager as recorded in the Adams affidavit told the prosecutor that it was on the cards that the quantity agreement sheets and the delivery dockets would evidence breaches of the 150 ton per day requirement and, should the amounts be large enough, the 12 truck per day requirement, based on the 30 ton per truck capacity identified by Allan, the plant manager. So, that affidavit material, either separately, having regard to the Walsh affidavit alone, or the Adams affidavit alone, or together, in the prosecutor's submission supports, without reference to anything else, the GIPA documents, the 199J (sic) documents, the legitimate forensic purpose behind the subpoena that was issued.
11. The Prosecutor submitted that the dockets may likewise be used for the process of subtraction to determine the amount of material supplied on each of the charge dates. For the present purposes, it was submitted, all that was needed was to establish that they provided a reasonable basis beyond speculation as to their probative value to justify the subpoena. The dockets would be relevant for tendency or coincidence purposes.
12. The information provided pursuant to the GIPA Act application (as exhibited to Mr Adams' affidavit), even in its redacted form, disclosed exceedence of the 150‑tonne‑per‑day requirement. There was, therefore, a reasonable basis for seeking the quantity agreement sheets and delivery dockets.
13. The Prosecutor submitted (Transcript 2 July 2020, page 20, lines 16 to 22): All of this information made it important for the prosecutor to get in the delivery dockets and quantity agreement sheets and, indeed as a properly responsible prosecutor looking to put all relevant material before the court that goes to the complete picture of events, the prosecutor had an obligation, having regard to the production of this redacted material disclosing breaches, to seek the actual quantity agreement sheets and delivery dockets in an unredacted form.
14. The evidence cited by the Prosecutor, being material produced by the GIPA Act application, would be sufficient to satisfy both limbs of the test set down in Chidgey.
15. The decision in Mansfield - CCA was a Court of Criminal Appeal decision and therefore binding on this Court. It was, therefore, to be followed. The Prosecutor submitted that, for me to depart from the decision in Mansfield - CCA, I would have to determine that the passages therein were plainly wrong (citing Gett v Tabet (2009) 254 ALR 504) (Transcript 2 July 2020, page 22, lines 34 to 46).
16. Furthermore, although any obiter remarks made by a superior court are not, strictly speaking, binding on lower courts, they are to be seriously considered and afforded considerable weight: (citing Ying v Song [2009] NSWSC 1344).
17. The factual scenario in Mansfield - CCA was remarkably similar to the present proceedings and therefore could not be afforded low weight. Later, the Prosecutor said (Transcript 2 July 2020, page 25, lines 22 to 29): And at para 50 the case that was put on behalf of Mr Mansfield and before the Court of Criminal Appeal, which is identical to the case now put by my learned friend, was decisively rejected. The Court of Criminal Appeal, at para 50, noted that there was no distinction drawn in the EP&A Act between an investigation conducted by council into alleged breaches for the purposes of a criminal prosecution and investigations of such breaches conducted for other purposes, for which they may be pursued under the EP&A Act. And that distinction is not only artificial but not one drawn by that Act.
18. The Prosecutor responded to the argument that the s 119J notice may be invalid in the following terms (Transcript 2 July 2020, page 26, lines 12 to 20): So, the Court of Criminal Appeal clearly adverts to the distinction within 119C between the way the powers are conferred on departmental officers and on council officers, a distinction that my learned friend refers to in his note of last night or yesterday evening. So, your Honour can't reason, consistently with the doctrine of precedent and the principles I've outlined, that all this is wrong and that by relying on 119C your Honour can find the 119J notice here invalid because there's an implied limitation on a council officer's power and the implied limitation is that they can't issue a notice to investigate whether there's been compliance or a breach or not of the EP&A Act.
19. Regardless, the penalty notice power in s 127A of the EP&A Act would have supported the issuing of a s 119J notice. The Prosecutor summarised the position advanced on this point in the following terms(Transcript 2 July 2020, page 27, lines 9 to 17): So once again, your Honour would be going against the reasoning and decision of the Court of Criminal Appeal expressed at para 85 or at least seriously considered obiter if your Honour were to conclude that 127A did not confer relevantly a function on council. And the conclusion and reasoning of the Court of Criminal Appeal there is not clearly or plainly wrong. To the contrary, it's relatively clear and correct but, even if it were obiter, your Honour would not be in a position, in my respectful submission, to properly depart from it, applying Gett v Tabet and the principle identified by Pepper J in Fullerton Cove and Ward J in Ying v Song.
20. Similarly, the Prosecutor submitted that item 12 of the table to s 121B of the EP&A Act would have supported a s s 119J notice, as it existed at that time. The Prosecutor proposed, however, that this basis for validity would only arise for consideration if the Court accepted Mr Hale's interpretation of Mansfield - CCA and his submission in relation to s 127A.
21. For abundant caution, the Prosecutor cited s 123 of the EP&A Act as conferring a general power (which captures local government authorities) to bring civil proceedings to remedy or restrain breaches of the Act.
22. The fact that an activity had ceased did not mean a local government authority should not have investigated that activity. There are good reasons why they should have. Any proposition to the contrary would have cut across the objects of the EP&A Act.
23. If I was to accept that the s 119J notice was valid then the Company's abuse of process argument was baseless. Even if the s 119J notice was ultra vires, it did not follow that issuing of a subpoena seeking the unredacted version of those documents would have been an abuse of process. The Prosecutor noted (Transcript 2 July 2020, page 35, lines 23 to 24): It's the exact opposite to an abuse of process. It's seeking to acknowledge a view of the law and to obtain documents that are properly admissible.
24. The Prosecutor cited Director of Public Prosecutions v Lazzam [2016] NSWSC 145 at [33] as authority for the proposition that any prosecution should not proceed on incomplete evidence, and that that was a matter of importance to the law.
25. Statements made in Mr Walsh's affidavit and by the plant manager (as disclosed in Mr Adams' affidavit) supported the subpoena. The subpoena was not issued in circumstances of speculation and had a legitimate forensic purpose. It was not a fishing exercise. The material sought was apparently relevant.
26. In addition to the possible contemplation of issuing penalty notices as a foundation for the issuing of a s 119J notice, the Prosecutor also submitted that, from amongst the other functions listed at [85] in Mansfield - CCA, the Council also had a potential foundation for issuing such a notice based on its power to make: … specified orders under Division 2A of Part 6 Implementation and enforcement, including orders under s 121B(1), to "cease carrying out specified building work or subdivision work" in circumstances where "(a) Building work or subdivision work is being carried out in contravention of this Act" and to rectify breaches
27. This was because, the Prosecutor submitted, the Council would have had the power, at the time of issuing the notice, to issue an order (Order 12) in the table to s 121B of the EP&A Act requiring the Company to undertake some rehabilitation or remediation activity at the site where the plant had been located. This could arise if the Company had failed to fulfil its obligations to clean up the site completely after it had vacated it at the end of its contracted operations.

The Company's submissions in reply

1. The subpoena as presently drafted related to a set of charges that no longer exist (Transcript 2 July 2020, page 36, lines 25 to 48). This was the first charge that had been struck out and the original formulation of the second and third charges had been required to be significantly reformulated.
2. Mr Hale took me to the Mr Bradbury's affidavit, Exhibit 2, and submitted that (Transcript 2 July 2020, page 38, line 48 to page 39, line 2): Now, that establishes that during the relevant period, as at the end of September 2015, the prosecutor had all the delivery documents, almost 500 pages of them, which showed the daily progressive totals, so they were in a position to identify with precision the - assuming the documents were accurate - the precise number of tons delivered during that period.
3. Mr Hale returned to this point later in his oral submissions, putting that, since the Prosecutor already had about 500 documents, the addition of any more would not materially assist the Prosecutor's case.
4. With regard to the validity of the subpoena, he submitted (Transcript 2 July 2020, page 39, lines 19 to 31): … the documents were sought and we're just talking about December 2015, 2016, were sought because at that stage it had not disclosed that in fact they, the prosecutor, had the documents and clearly it did not wish it to be known that the basis that they had those documents and the basis upon which they had them and, as we say in our written submissions, they wished to obtain them pursuant to the subpoena, to obtain the very documents they already had and the legitimate forensic purpose is, in our submission, so as not to disclose that they had them by this time. So ..(fault in audio visual link).. the face of it the documents would have been obtained pursuant to a subpoena, purely pursuant to the subpoena and, in our respectful submission, in those circumstances, the applicant here, the prosecutor, hasn't identified a legitimate forensic purpose for which access is sought.
5. Mr Hale did not reject to the proposition that a new subpoena may have potentially been valid if framed in reflection of the present charges and expressed in appropriate terms. Mr Hale said (Transcript 2 July 2020, page 42, lines 8 to 9): What should have happened is the issuing of a new subpoena.
6. Seeking additional documents for the purpose of establishing tendency evidence would not have materially assisted the Prosecutor's case as the seeking of tendency evidence carried an assumption that the tonnages exhibited on the relevant dates did not demonstrate a breach of consent conditions. Therefore, Mr Hale submitted that, if I was to uphold the subpoena, it should be confined to documents relating only to the two dates nominated in the charges.

Introduction

1. I should note that, at the beginning of my consideration, I am not to be taken to be making any anticipatory ruling pursuant to s 192A of the Evidence Act as to whether or not any or all of the documents produced pursuant to the s 119J notice are to be admitted at trial. Any challenges to any or all of the documents produced pursuant to the s 119J notice will need to be dealt with by the trial judge (should such objection be pressed).

Introduction

1. In the letter constituting the notice (Exhibit A), Mr Adams expressly set out the reason for issuing the notice in the opening paragraph of that letter. Relevantly, he wrote: Cooma-Monaro Shire Council is investigating whether Tropic Asphalts Pty Ltd (Tropic Asphalts) committed one or more offences under the Environmental Planning and Assessment Act 1979 (EPA Act) in operating an asphalt processing plant at 30 Springs Road, Rock Flat, NSW otherwise than in accordance with a development consent that was granted and in force under that Act.
2. There were two, separate bases upon which the Prosecutor submitted that there was a proper and valid basis upon which the s 119J notices could be founded. It is necessary to consider each of them.

A potential penalty notice as a basis for issuing the s 119J notice

1. The first basis to which I turn is that the potential existed that the Prosecutor could be seeking evidence to permit a penalty notice to be issued to the Company.
2. Responding to a direct question from me, Mr Hale agreed that there was no temporal barrier to a penalty notice being issued to the Defendant in September 2015 with respect to conduct that took place in January, February or March of 2015 (Transcript 2 July 2020, page 45, lines 31 to 36).
3. As earlier set out, Mr Hale submitted that issuing such a penalty notice was not a function of a council but was an activity carried out personally by the issuing officer. Mr Hale did not cite any authority in support of his proposition that the issuing of penalty notices was a personal activity carried out by an officer of a council authorised pursuant to s 127A of the EP&A Act and cl 284 of the Regulation working together. This submission, in my opinion, must be rejected as untenable.
4. It seems to me that the issuing of a penalty notice for any of the matters contained in Sch 5 to the Regulation (being the table of matters providing a proper foundation for the issuing of such a notice) cannot be an activity undertaken personally by an authorised officer. Such issuing of a penalty notice must be on behalf of a council and in support of that council's regulatory functions in maintaining the integrity of the planning system established by the EP&A Act.
5. This arises in this instance as the s 119J notice itself, in its introductory paragraph set out above, makes it clear that what was being investigated was whether the Company had committed one or more offences. There was no confining by the terms of this expression to matters to be prosecuted in a court. It therefore did encompass the possibility that an outcome could be the issuing of a penalty notice. In this regard, I accept the accuracy of the observation in [85] of Mansfield - CCA that the issuing of such notices forms part of the functions of a council.
6. If I am correct in this conclusion, the possibility of the issuing of a penalty notice provided one appropriate foundation for the issuing of the s 119J notice. One proper foundation is sufficient to render the s 119J notice valid.

An order pursuant to s 121B as a basis for issuing the s 119J notice

1. This alternative basis advanced by the Prosecutor as a power to issue a s 119J notice being for the purpose of the Council potentially issuing an order pursuant to s 121B of the EP&A Act has a degree of superficial attraction. However, it fails when attention is paid to the precise terms of the earlier quoted paragraph of the notice issued on 3 September 2015 by Mr Adams.
2. Whilst this phrasing could be regarded as encompassing the potential for the issuing of a penalty notice (such a penalty notice being a softer option than prosecution for criminal conduct), the wording ("committed one or more offences") is insufficiently elastic to be stretched to comprehend this alternative proposition advanced by the Prosecutor.
3. This basis for validity proposed by the Prosecutor is rejected.

Conclusion on the validity of the s 119J notice

1. I have therefore concluded that the s 119J notice was validly issued. Consistent with my earlier discussion of EPA v Caltex, the issuing of a valid statutory notice and a subpoena addressed to seeking (generally) the same documents does not constitute an abuse of process. Therefore, issuing the s 119J notice provides no basis to set aside the subpoena.

The material in [14] of Mr Adams' affidavit

1. I have earlier noted that the Prosecutor took me to passages in Mr Adams' affidavit that he submitted provided a sufficient basis upon which the issuing of the subpoena to the RMS was founded. Mr Adams' affidavit was in evidence via Exhibit 1 at folios 61 to 71.
2. In [14] of Mr Adams' affidavit (at folios 64, 65 and 66 of Exhibit 1), he sets out conversations he had, with a man named "Alan" (who described himself as the Plant Manager) during Mr Adams' site inspection on 3 February 2015.
3. Before turning to any detail contained in this affidavit, it is important to note that I am considering the relevant portions of its content only in the context of addressing this challenge to the subpoena issued by the Prosecutor to the RMS. It is, therefore important also to note that I am not determining issues unrelated to this point, such as the admissibility of this affidavit at trial or whether the Plant Manager with whom Mr Adams had conversations during the course of the site inspection on 3 February 2015 required to be authorised to make admissions on behalf of the Company, or, indeed, whether he did in fact make the admissions recorded in the affidavit. They are matters which may arise at trial, but do not, for the purposes of this limited consideration, require addressing at this time.
4. For present purposes, it is appropriate to set out portion of the relevant paragraph of this affidavit as it recounts elements of the conversation dealing with Conditions (4) and (6) of the Company's development consent. It is to be noted that those two conditions were set out at the commencement of this decision at [4]. The appropriate (and relevant for present purposes) extract from Mr Adams' affidavit (Exhibit 1, folios 65 and 66) was in the following terms: … As we were walking I looked up at the plant and began to talk to Alan in general conversation about the plant. Our conversation was to the following effect: I said "It's an impressive looking machine referring to the plant). Has everything been working well?" Alan said "Yes it's a bit of an operation to get it here, this one came from the last job at Broome, and we had to dismantle it and then put it together again, but it's all going well. The plant has produced about 650 tonnes of bitumen today." We stopped, and I showed Alan a copy of the development consent. Our conversation then continued along the following lines: I said: "Its interesting that that you say the plant produced 650 tonnes of bitumen today, because there is a condition of approval, condition 4 in fact, that limits production to 150 tonnes per day. Are you aware of this condition of approval?" Alan said "Oh, is there? No I wasn't aware of that." I said "So were the 650 tonnes produced today just a one off? What amount would you say is produced on average per day?" Alan said "The production amounts per day vary. Today was a big one, other days we only produced around 300 tonnes or so. I would say on average the plant is producing around about 400 tonnes per day. We have had some other days besides today where the production has been well above that though." I said "So what is the capacity of the plant? What is the maximum amount it could produce in a single day?" Alan said "Up to 700 tonnes a day can be produced" I said "How many trucks are needed to move the different amounts that are produced?" Alan said "We had 21 trucks come in today to move the 650 tonnes it produced. That's how I know we produced about 650 tonnes today, because of the number of trucks." I said "How confident are you about that, isn't each truck different? Is that from your records?" Alan said "No, you can work it out. Each truck carries, on average, about 30 tonnes. That's why I know we produced about 650 tonnes today because we had 21 trucks come in and go. Most trucks come in around 7:30 in the morning bringing raw materials from Schmidts Quarry and leave at about 11:30 with the prepared hot mix bound for the road works site." I said "Thanks for your time today Alan."
5. As can be seen from the above extract, this conversation clearly provided, in the context here engaged, admissions made to Mr Adams on 3 February 2015 (being a date well prior to the date of the s 119J notice or of the subpoena issued to the RMS) evidencing breaches of each of the two conditions that provide the foundation for the charges remaining against the Company.
6. During the course of the hearing on 2 July 2020, the following exchange took place between me and the Prosecutor (Transcript 2 July 2020, page 13, lines 12 to 26): HIS HONOUR: So, just in the context of my enquiry to you concerning the GIPA and the 199J (sic) materials providing separate and independent sources for, in your submission, a holding of validity of the subpoena, do you say to me that that which is contained at para 14 at folios 64, 65 and 66 of the Adams affidavit dealing with the material concerning what was said by the plant manager during the inspection of the plant, provides a third valid basis for the issuing of the subpoena? Third sufficient basis for the issuing of the subpoena? IRELAND: Yes, I do, your Honour. So, even if your Honour were simply to consider that material on a stand-alone basis, that the power and significance of those admissions by the defendant's plan manager, that there was really a repeated and thorough going exceedence of the 150 gone per day limitation is such that it is impossible to properly conclude, in the prosecutor's submission, that the prosecutor was in any way fishing when it simply sought the daily quantity sheets or the weigh bridge dockets for daily production.
7. On the basis of that which I have set out from Mr Adams' affidavit, the response from the Prosecutor to my question is clearly correct. The inference to be drawn from the extract is that there was a proper basis upon which the Prosecutor could found the expectation that it was on the cards that documents that were likely to be produced pursuant to the subpoena, subsequently issued to the RMS, were adjectivally relevant to demonstration by the Prosecutor that each of Conditions (4) and (6) had been breached by the manner of operation by the Company of its mobile asphalt plant during the Company's fulfilment of its contract with the RMS.
8. The conversation set out in Mr Adams' affidavit was, in itself, a sufficient basis upon which the Prosecutor issued this subpoena to the RMS, a basis standing alone from any other potentially valid basis upon which to found the subpoena.
9. This, alone, is sufficient to reject the Company's submission that the subpoena should be set aside.

The material arising from [16] of Mr Adams' affidavit and from Mr Walsh's affidavit

1. I have earlier noted that the Prosecutor submitted that material appended to the affidavit of Mr Walsh, the Works Manager, Traffic and Asphalt for the RMS, was also relevant to my consideration of the validity of the Prosecutors' subpoena.
2. The starting point for addressing this basis for validity of the subpoena advanced by the Prosecutor is [16] of Mr Adams' affidavit. It was in the following terms (Exhibit 1, folio 67): 16 On 4 March 2015 I telephoned Adrian Walsh of the RMS to discuss matters regarding Tropic Asphalts. A copy of my file note is at Page 66 of Exhibit MA1. We had a conversation to the following effect: I said: "Hi Adrian. My name is Mark Adams and I am calling from Cooma-Monaro Shire Council to discuss the RMS contract with Tropic Asphalts" Mr Walsh said "Hi. I have also spoken to Edward Paterson at the Council about this matter and I sent him some info about the amount of material we have been receiving." I said: "Yes I know, and I'm aware that you have spoken to Edward [Paterson]. What I am trying to do is get an understanding of how much material is required for the job and what Tropic understood they would have to supply to get the job done in the timeframe. I'm not sure if they are going faster than needed through the job to get it done earlier than expected or if they always knew they would be producing these daily amounts just to meet their contractual obligations. Can you provide me with a copy of the contract?" Mr Walsh said "I will send you some documentation. I can't send everything because some documents are commercially sensitive. I will send you the information which is available to the general public. I also sent Edward [Paterson] some information on the tonnages of bitumen delivered per day - have you seen that?" I said "Yes I have seen that. Thank you, that was good. If you could send through what other information you can that would be very helpful." Mr Walsh said "Yes ok. I will. Could you send me an e-mail about the information you require and I'll respond to it." I said "Ok. Do you know much about Tropics' development consent?" Mr Walsh said "We have asked Tropic about their development consent but they have been a bit evasive about it. We know they have a development consent and they've been talking about it with Council. We have made them aware that Council has spoken to the RMS about their development and they weren't happy that Council had done that because the RMS is Tropic's customer." I said "The Council can speak to whoever it wants to when it's investigating these sorts of matters. Just out of interest, what kind of road works could be carried out with a supply of bitumen of 150 tonnes per day?" Mr Walsh said "In general, resheeting work such as is being undertaken by Tropic at the moment requires around 450-500 tonnes per day in order to be cost effective for RMS. Work is currently being done on Kosciuszko Road, and this is due to be completed by the end of March. The contract says that up to 500 tonnes per day would be needed for this job. In terms of the work that the RMS does, a supply of 150 tonnes per day would only be enough to cover patching jobs." I said "Thanks for your help Adrian and I'll await those extra documents you said you would send through."
3. As noted, Mr Walsh had provided an affidavit dated 31 October 2016. This affidavit formed part of Exhibit 1 at folios 361 to 368. Appended to this affidavit was a range of additional material relevant to the issues here engaged.
4. It is necessary to set out what was dealt with by some of that material. At Exhibit 1, folios 419 to 422, there is an e-mail exchange between Mr Walsh and Mr Edward Paterson, Urban & Rural Planner, employed by the Prosecutor. In the initiating e-mail, sent on 6 February 2015, Mr Walsh was requested to provide tonnages of material produced by the Company's mobile asphalt plant and delivered to the RMS projects. Mr Paterson then made a follow up request on 9 February 2015.
5. On 11 February 2015, Mr Walsh replied (Exhibit 1, folio 419) setting out the tonnages of material supplied during the period from 21 January to 6 February 2015. A copy of folio 419 is reproduced as Annexure A to this decision. As can be seen from the list of tonnages delivered, Annexure A provides a proper basis upon which the Prosecutor could conclude that, during the period covered by the list in Mr Walsh's e-mail, in excess of 150 tonnes per day of material was supplied by the Company on each of the 11 days listed in Mr Walsh's reply.
6. Mr Walsh's affidavit also contained, at [12] and [13], descriptions relevant to documents sought by paragraphs (3) and (4) of the subpoena. These paragraphs were in the following terms: 12 A document titled 'quantity agreement sheet' was completed for each active site each day where Tropic was supplying asphalt. The quantity agreement sheets identify the haulage distance, where the material came from, which site the material was taken to, the estimated quantity of asphalt that would be required, the actual amount delivered and the dollar rate that applied. The quantity agreement sheets are used to calculate the amount payable by the RMS under the contract. 13 Delivery dockets are attached to the quantity agreement sheets. These state the tonnage of asphalt delivered by each truck to each site. The sum of all of the delivery dockets for a particular site and day is generally equal to the quantity of asphalt recorded on the corresponding quantity agreement sheet, unless there is waste material.
7. During the course of the hearing, I interrogated the Prosecutor as to whether or not that which had been disclosed by Mr Walsh's e-mail provided a separate, sufficient basis for the issuing of the subpoena to the RMS. The exchange was in the following terms (Transcript 2 July 2020, page 15, lines 15 to 28): HIS HONOUR: So, do you now say to me, because I'm wanting to understand this with precision so that Mr Hale can respond to it, are you saying to me that the e-mail that is at folio 419, at least from its face, provides a basis for the subpoena with respect to the dates set out between 21 January and 6 February? And that secondly, as a consequence of the notice that you have issued to the defendant, which is contained in exhibit 3, that notice explains why and demonstrates a necessary validity post facto for the breadth of the subpoena on a fourth basis? IRELAND: Your Honour, to answer your Honour's question, in the prosecutor's submission certainly para 4 of the subpoena at least is supported in terms of legitimate forensic purpose by annexure 4, p 419 of the court book alone, read of course with the main body of Mr Walsh's affidavit explaining what it is.
8. I am satisfied that the same reasoning is to be applied to the evidence in Mr Walsh's affidavit as I have applied to the material from Mr Adams' affidavit.
9. It is therefore appropriate to conclude that the tonnages evidenced by Mr Walsh's e-mail on 11 February 2015 (being a date well prior to the date of the s 119J notice or of the subpoena issued to the RMS) also constituted a sufficient basis upon which to conclude that the subpoena was validly issued (and not merely with respect to matters in (3) and (4) of the subpoena but as to the broader range of material sought by it).

The GIPA Act material

1. I set out earlier, at [81], the admitted elements of the table to Mr Bradbury's affidavit of 23 June 2020 which comprised his analysis of the difference between that which was sought from the RMS by the contested subpoena (on one hand) and the nature of the information which had been provided by the RMS pursuant to the GIPA Act application (on the other).
2. For present purposes, it is sufficient to note that the column of that table dealing with the GIPA Act-produced material which clearly demonstrated that the nature of the information which had been sought and provided using that avenue was significantly and, prima facie, relevantly incomplete. In this context, it is to be noted that Mr Hale did not challenge the accuracy of the summary set out in the GIPA Act column of that table.
3. It is unnecessary to rehearse, in any detail, the tests to be applied when considering whether the GIPA Act material would provide a proper foundation for the issuing of the subpoena to the RMS.
4. It is evident, when comparing the RMS column in the table (setting out that which has been sought by the subpoena) and the material which was made available to the Prosecutor by virtue of the GIPA Act application, that the filling in of the gaps in the information is adjectivally relevant and on the cards to materially assist the Prosecutor in proving its case in each of the two charges currently remaining against the Company.
5. On this basis, the GIPA Act material, in itself, also provides a further separate and sufficient basis to uphold the subpoena to the RMS.

Conclusion on the validity of the subpoena

1. There are, for the reasons set out above, four entirely separate bases providing a proper foundation for the issuing of the subpoena to the RMS. The Company's proposed Orders (3) and (4) in its Notice of Motion of 1 February 2017 are therefore rejected.

The potential for tendency and coincidence evidence as a basis for access to a wider range of information

1. The Prosecutor has submitted, as earlier noted, that the service on the Company's legal representatives of notices required by ss 97(1)(a) and 98(1)(a) of the Evidence Act indicating that the Prosecutor proposed to rely on evidence of the Company's activities on other days during the period that the mobile asphalt batching plant operated was sufficient to provide a basis why the subpoena should be permitted to operate across the full range of dates during which the Company was operating the plant for the purposes of supplying product to the RMS.
2. As also earlier noted, Exhibit 1 contained, at folio 419, an element from an e‑mail exchange between Mr Walsh and Mr Paterson, a council officer. That e-mail discloses that during the period between 22 January and 6 February 2015, it was Mr Walsh's understanding that the quantity of material delivered from the plant to the RMS was consistently higher than the 150‑tonne maximum production permitted by Condition (4) of the Company's development consent. The tonnages recorded by Mr Walsh range from a high of 624 tonnes on 3 February 2015 to a low of 206 tonnes on 22 January 2015.
3. At this point, it is to be observed that I am not to be regarded as treating this e‑mail as proof of what was asserted in it. I am simply having regard to it for the purposes of considering whether or not the temporal extent of the subpoena issued by the Prosecutor to the RMS is warranted.
4. Similarly, I am not, in any fashion, making any observation about the admissibility of any material obtained that goes beyond the days specified in the two charges. Questions of admissibility, for the purposes of use as tendency or coincidence evidence, is subject to an evaluation by the trial judge rendered necessary as a consequence of the terms of s 101(2) of the Evidence Act. This requires a judicial consideration, as can be seen from the terms of the provision, balancing the probative value of the evidence against the prejudice that would be occasioned to the Company by its admission. The terms of s 101(2) are: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
5. It is sufficient for me, in these circumstances, to consider whether or not the material which would be produced by the RMS across the broad range of dates sought by the Prosecutor is likely to be "adjectivally relevant" and that "it is on the cards" that it would have materially probative value in the Prosecutor's case in each of the two charges of conduct for the purposes of the (different) single‑day offences that now stand against the Company.
6. It is also to be noted that, at this point, the subpoena has been issued in both remaining proceedings. As I have determined that it is appropriate that the subpoena should cover the whole of the range of the dates nominated in it by the Prosecutor, the question of admissibility in the context of s 101(2) of the Evidence Act will require to be determined with respect to each charge rather than in some global fashion. However, for present purposes, that also is not a matter engaging my consideration, it is a matter which, if it arises, will await determination by the trial judge.
7. It is self-evident that weighbridge dockets and associated other documents are "adjectivally relevant" to issues arising in the charge concerning the alleged breach of Condition (4) that limited the production volume of the plant on any day. That is because the total tonnages disclosed on any day will not only be relevant to the extent that they demonstrate that tonnages delivered on the date nominated in the charge concerning Condition (4) but they will also be "adjectivally relevant" for the purposes of the Prosecutor's proposed submissions concerning tendency and coincidence conclusions to be drawn concerning this charge.
8. It is also clear from the nature of the documents specified that they are also ones which could have some significant potential probative value concerning the Condition (6) charge.
9. Because of the carrying capability of the trucks used to transport the material from the mobile asphalt plant to the various RMS sites was ~30 tonnes (Mr Adams' affidavit - Exhibit 1 at folio 66 - comment by Company's Plant Manager), knowledge of the tonnages delivered therefore enables calculation of the number truck movements each day - a matter relevant to the charge alleging the breach of Condition (6). The documents are therefore relevant to both charges and also, on the tendency and/or coincidence basis proposed to be advanced by the Prosecutor, across the whole period for which information is sought by the subpoena addressed to the RMS.
10. For this reason, there is no present basis to limit the information to be made available to the Prosecutor by the RMS to the two specific dates nominated in the remaining charges.
11. However, determination of whether or not to admit such wider date range material awaits determination by the trial judge - I am simply determining (as I have) that it is appropriate for the Prosecutor to have access to that material to enable it to make such tendency and coincidence submissions to the trial judge as the Prosecutor considers appropriate at the time of the trial.
12. As a consequence, the Company's fall-back position earlier outlined at [105] to [107] is also rejected.

Orders

1. It therefore follows that the orders of the Court are: 1. Orders (3) and (4) sought in the Defendant's Notice of Motion filed on 1 February 2017 are refused in each remaining matter; 2. The remaining matters are set down before the List Judge for entry of pleas and for further directions on 25 September 2020; and 3. The exhibits on the Motion are returned.

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Annexure A (186751, pdf) 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 September 2020