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

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

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.

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide on an application by Jack & Bill Issa Pty Ltd, a corporate defendant, to set aside a subpoena issued by the Director-General of the Department of Environment and Climate Change. The defendant was facing charges under section 12 of the Native Vegetation Act 2003, which pertain to the unlawful clearing of native vegetation, and had pleaded not guilty. The subpoena, issued on 27 November 2009, required the defendant to produce certain documents and was scheduled for discussion on 15 December 2009, the first day of the trial.

The central legal issues before the court involved the interpretation and scope of the powers granted to the prosecutor under section 36 of the Native Vegetation Act 2003, the applicability of self-incrimination protections to corporate entities, and the procedural preference for a notice to produce over a subpoena when requiring document production. The defendant argued that section 36 of the Act limited the prosecutor’s ability to obtain documents after proceedings had been initiated, that the documents in question would tend to incriminate the defendant, and that a notice to produce should have been used instead of a subpoena.

Justice Biscoe rejected the defendant's arguments. The court held that section 36 of the Native Vegetation Act 2003 did not limit the prosecutor's ability to obtain documents through a subpoena once criminal proceedings had been initiated. It was also determined that the defendant, being a corporation, did not have the privilege against self-incrimination as provided under section 187 of the Evidence Act 1995. Lastly, the court dismissed the argument that a notice to produce was the necessary procedural step, stating it was a matter of form rather than substance, and no authority was provided to support this submission.

The court dismissed the defendant's motion to set aside the subpoena, allowing the prosecutor to proceed with the trial as scheduled.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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