Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 2)

[2009] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION:

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 2) [2009] NSWLEC 229

PARTIES:

PROSECUTOR:
Director-General, Department of Environment and Climate Change

DEFENDANT:
Jack & Bill Issa Pty Ltd

FILE NUMBER(S):

50030 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PROSECUTION :- Corporate defendant's application to set aside subpoena to produce documents on grounds that statutory power to obtain information exhausts prosecutor's power to obtain documents or that the documents would tend to self-incriminate the defendant or that a notice to produce was the necessary procedure.

PRACTICE & PROCEDURE:- Corporate defendant's application to set aside subpoena to produce documents on grounds that statutory power to obtain information exhausts prosecutor's power to obtain documents or that the documents would tend to self-incriminate the defendant or that a notice to produce was the necessary procedure.

LEGISLATION CITED:

Evidence Act 1995, s 187
Native Vegetation Act 2003, ss 12, 36

CASES CITED:

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

DATES OF HEARING:

15 December 2009

EX TEMPORE JUDGMENT DATE:

15 December 2009

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T Howard
SOLICITORS
Department of Enviornment, Climate change and Water

DEFENDANT:
Mr B Vasic
SOLICITORS
Agostino & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

15 December 2009

50030 of 2009

DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v JACK & BILL ISSA PTY LTD

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an oral motion by the defendant in this criminal trial to set aside a subpoena to produce by the prosecutor on 27 November 2009 returnable today and directed to the defendant.

2 The defendant is charged with an offence against s 12 of the Native Vegetation Act 2003 and has pleaded not guilty. This is the first day of the trial.

3 The first ground is that s 36 of the Native Vegetation Act 2003 is an exhaustive statement of the power of a prosecutor to obtain information. I do not accept the submission. Section 36 is a means by which the Director-General of the Department of Environment and Climate Change may obtain information as part of the Director-General’s investigatory powers, being information which is not limited to the production of documents. There is nothing in that section which would suggest that it is intended to preclude the processes of the court in the form of a subpoena once proceedings have been instituted.

4 The second ground, as I understand it, is that the production of the documents would tend to incriminate the defendant. I do not accept the submission. As the defendant is a corporation, it has no privilege against self-incrimination: s 187 Evidence Act 1995; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.

5 The third ground is that if there is power to require the production of documents, then the appropriate or only course would be by way of a notice to produce rather than a subpoena. It is fairly accepted on behalf of the defendant that that is a point of form rather than substance. No authority is cited for the submission and I am unable to accept to it.

6 The defendant’s motion to set aside the subpoena is dismissed.