Environment Protection Authority v Knight Frank (NSW) Pty Ltd

[1999] NSWLEC 118

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Knight Frank (NSW) Pty Ltd [1999] NSWLEC 118

PARTIES

Prosecutor:
Environment Protection Authority

Defendant:
Knight Frank (NSW) Pty Ltd

NUMBER:

50017 of 1999

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- Notice to produce in criminal proceedings - leave to require production prior to hearing date

LEGISLATION CITED:

Land and Environment Court Act s 6, s 15

Supreme Court Rules Pt 36 r 13, r 16, Pt 61 r 1, Pt 75 Div 2, r 6

Land & Environment Court Rules Pt 3 r 3, r 9, Pt 6 r 2

DATES OF HEARING:

05/20/1999

DATE OF JUDGMENT DELIVERY:

05/25/1999

LEGAL REPRESENTATIVES:

Prosecutor:
Mrs J C Kelly (Barrister)

Solicitors:
Environment Protection Authority

Defendant:
Mr C T Drury (Solicitor)

Solicitors:
Phillips Fox

JUDGMENT:

IN THE LAND AND Matter No. 50017 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 25 May, 1999

Environment Protection Authority
Prosecutor

v
Knight Frank Pty Ltd

Defendant

REASONS FOR JUDGMENT


1. On 8 April 1999 the prosecutor filed a Notice to Produce addressed to the defendant. It required the production of documents on 27 April 1999.

2. The Class 5 Order issued by the Court on 24 March 1999 did not require the defendant’s appearance until 6 May 1999.

3. On 6 May 1999, when the parties appeared, Mr Drury indicated that the defendant wished to argue that it was not required to produce the documents in answer to the Notice to Produce because leave had not been obtained pursuant to Pt 36 r 16 of the Supreme Court Rules (the SC Rules) for it to be returned at a date other than the hearing. The Notice to Produce was stood over to 20 May 1999 for argument.

4. In the meantime the prosecutor has caused a further Notice to Produce to be filed returnable on 28 May 1999.

5. The first Notice to Produce, originally returnable on 27 April 1999, bears a Court stamp noting that it had been filed and the Court seal with a note that a copy of the document must be served by 16 April 1999.

6. The second Notice to Produce bears a further endorsement as follows:-


MAY BE MADE
RETURNABLE ON 28 MAY 1999

per REGISTRAR


7. Both Notices to Produce bear the signature of the prosecutor’s solicitor.

8. Mrs Kelly, who appears on behalf of the prosecutor, did not vigorously press that, if leave was required before the Notice to Produce could be issued, the first Notice to Produce had been issued with leave.

9. However, she does contend that the further endorsement on the second Notice to Produce is a clear indication by the Court that leave has been granted.

10. Division 2 of Pt 75 of the SC Rules applies to proceedings in the summary jurisdiction of this Court. Part 75 r 6 applies Pt 36 r 13 and r 16.

11. Part 36 r 16(1) is in the following terms:-

16 (1) Where a party to any proceedings serves on another party notice requiring the party served to produce at any trial or hearing in the proceedings, or with the leave of the Court, on any day, or before any judge, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production.


12. Section 6(1) of the Land and Environment Court Act (the Act) provides that all proceedings in the Court and all business arising out of any such proceedings shall, subject to the Act, be heard and disposed of before a Judge who shall constitute the Court. However, pursuant to subs (2), subs (1) does not affect the provisions of the Act and the rules concerning the hearing and disposal of proceedings before one or more Assessors (now Commissioners) or other officers of the Court.

13. The Registrar is an officer of the Court with such functions as may be prescribed by the Act, the rules or the Regulations (s 15).

14. Part 3 r 3 of the Land and Environment Court Rules (the LEC Rules) states that the Registrar or the Assistant Registrar may, except where the Chief Judge otherwise orders or the rules otherwise provide, exercise the powers of the Court to make an order, inter alia, that a party produce any document to the Court on a nominated day prior to the hearing of the proceedings and that any other party be permitted to inspect any documents so produced. Under r 3(2) the Registrar may delegate the making of those orders to any other officer in the Registry as the Registrar sees fit.

15. Part 61 r 1 of the SC Rules permits the Registrar to exercise the powers of the Court under the provisions of the rules mentioned in Sch E. The powers include the granting of leave to search or inspect documents produced in accordance with Pt 36 r 16(3). Rule 16(1) is not referred to in Sch E.

16. Part 61 is not taken to form part of the LEC Rules pursuant to Pt 6 r 1 of the LEC Rules.

17. Division 2 of Pt 75 of the SC Rules applies by dint of Pt 6 r 2(1) of the LEC Rules. It is only by the application of Pt 75 r 6, as already mentioned, that Pt 36 r 16 applies to these proceedings.

18. The powers of the Registrar of this Court are specifically provided for in Pt 3 of its own rules.

19. Part 61 of the SC Rules is peculiar to that Court. Mr Drury has not directed me to any provision which has the effect of precluding the Registrar from exercising the power to grant the necessary leave for the issue of a Notice to Produce pursuant to Pt 36 r 16(1) other than as a consequence of the incorporation of Pt 36 r 16 in the LEC Rules and the effect of Sch E.

20. Although Pt 6 r 2(1)(c) applies Div 2 of Pt 75 of the SC Rules so that a reference to an officer of the Supreme Court is taken to be a reference to the equivalent officer of this Court, that does not have the effect of tipping Pt 61 of the SC Rules into the rules of this Court.

21. In the absence of any order by the Chief Judge or other provision in the LEC Rules, the Registrar has the power to make an order that a party produce documents to the Court on a nominated day prior to the hearing pursuant to Pt 3 r 3. This function may be delegated pursuant to Pt 3 r 3(2).

22. The prosecutor does not rely on any direct evidence of the granting of leave or the issue of the first Notice to Produce. However the document bears the Court seal and the endorsement requiring it to be served by 16 April 1999. An original copy of the document has been lodged in the Court file with particulars of the date of filing endorsed thereon.

23. In my opinion, the document bears on its face sufficient evidence that the Notice to Produce was served after it was filed and made returnable on a day which the Court accepted, subject to service on the defendant by 16 April 1999. I am satisfied therefore that the first Notice to Produce was therefore served on the defendant with the permission of the Court.

24. If there be any doubt that there is sufficient evidence of requisite leave being obtained for the first Notice to Produce, then the endorsement on the second Notice to Produce signed on behalf of the Registrar clearly gives the Court’s permission for the Notice to be listed for return on 28 May 1999.

25. I am satisfied that the prosecutor, as a party to the proceedings, had the necessary leave of the Court within the meaning of Pt 36 r 16 of the SC Rules to require the production of the documents on a day other than at the trial or hearing in the proceedings.

26. Mr Drury indicated that if the Court found that leave had been granted, he would seek a review of the decision of the Registrar pursuant to Pt 3 r 9 of the LEC Rules and further that he would seek an order as contemplated by Pt 36 r 16(1) that the documents not be produced in accordance with the Notice.

27. It is now a matter for Mr Drury to make any such further application as he sees fit.