Gosford City Council v Brand, G C

[2006] NSWLEC 422

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION:	Gosford City Council v Brand, G C [2006] NSWLEC 422
PARTIES:	PROSECUTOR Gosford City Council DEFENDANT George Charles Brand
FILE NUMBER(S):	50013 of 2005
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- application to amend summons. Evidence:- admissibility of confidential communications.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 96A, 125 Evidence Act 1995, ss 126A, 126B, 135, 136, 138 Gosford Interim Development Order No. 122
CASES CITED:	Anthony John Tauszik v Gosford City Council [2006] NSWCCA 193; Woollahra Council v Dutruc Pty Ltd (1997) 95 A Crim R 344; Broome v Chenoweth (1946) 73 CLR 583; Traveland v Doherty (1982) 63 FLR 41; Ex parte Parkinson (1909) 26 WN(NSW) 7; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39; Cahapatative v R (2004) 146 A Crim R 542; R v Bartelesi (1997) 41 NSWLR 641; Wehbee v Voulgarakis (1991) noted at 9 Petty Sessions Review 4363; Ex parte Lovell; Re Buckley (1938) SR(NSW) 153; Hornsby Shire Council v Clyne (1998) 99 LGERA 432; Hornsby Shire Council v Winsloe (1998) 101 LGERA 117; A & Ors v Hayden & Ors (1984) 156 CLR 532
DATES OF HEARING:	18/04/2006, 19/04/2006, 20/04/2006, 01/05/2006
DATE OF JUDGMENT:	07/13/2006
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D A Buchanan SC with Dr S M Berveling (barrister) SOLICITORS P J Donnellan & Co DEFENDANT Mr D C Fitzgibbon (barrister) SOLICITOR Daphne Kennedy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

13 July 2006

50013 of 2005 Gosford City Council v Brand, G C

JUDGMENT

1 Talbot J: By summons and order issued in the Court’s class 5 jurisdiction the defendant is required to answer the charge that in 2004 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) that on land identified in the summons at Cullens Road, Kincumber he did, without obtaining development consent from the prosecutor, contrary to the provisions of the prosecutor’s Tree Preservation Order (“TPO”) made pursuant to cl 35 of Interim Development Order No. 122 (“IDO”), carry out development by cutting down, removal and wilful destruction of trees and rainforest vegetation. It is alleged the development could not be carried out without consent under cl 35 of the PSO, in breach of s 76A of the EPA Act.

2 By notice of motion dated 10 April 2006, the prosecutor seeks leave to amend the summons to allege that the offence under s 125(1) of the EPA Act was that the defendant did carry out development that needed consent, contrary to s 76A(1) of the EPA Act, to wit clearing and underscrubbing, cutting down, removing, injuring and wilfully destroying trees and rainforest vegetation, being development for the purposes of agriculture or of subdivision, contrary to the provisions of cl 5(2) and zone 7(a) Conservation and Scenic Protection (Conservation) to Interim Development Order No. 122 (“IDO”), a deemed environmental planning instrument for the purposes of the Act. The defendant opposes the granting of leave.

3 By notice of motion dated 2 February 2006, filed 6 February 2006 and subsequently amended by leave and consent on 20 April 2006, the defendant moves the Court for orders that the evidence of the prosecutor discloses breaches of ss 126A, 126B and 138(1) of the Evidence Act 1995 and that the evidence of the prosecutor be held to be inadmissible on that account upon the following grounds:

(a) The evidence adduced discloses breaches of s 126A(1), s 126B and s 138(1) of the NSW Evidence Act 1995 in that there was a failure of the express obligation as to confidentiality.

(b) The evidence is seriously tainted or unlawfully obtained within the statutory definitions of the Evidence Act

(c) The conduct of the prosecution witnesses as disclosed in the evidence is such as to constitute unlawful or misleading conduct within the statutory definitions in the Evidence Act.

4 The prosecutor opposes the making of the orders pursuant to the defendant’s notice of motion.

5 Section 126A within Division 1A of Part 3.10 in Chapter 3 of the Evidence Act which deals with admissibility of evidence provides as follows:

(1) In this Division:

harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).
protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant):
(a) in the course of a relationship in which the confidant was acting in a professional capacity, and
(b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
protected confider means a person who made a protected confidence.
protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.

(2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication.

6 Section 126B of the Evidence Act provides the power for the Court to exclude evidence of protected confidences as follows:

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person.
(5) The court must state its reasons for giving or refusing to give a direction under this section.

7 The dictionary to the Evidence Act contains a definition of “probative value” in the following terms:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

8 Also relevant to the defendants claim are ss 135, 136 and 138 of the Evidence Act which respectively provide:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

The Application to Amend the Summons

9 It is appropriate to deal with the prosecutor’s notice of motion first so that the exact nature of the charge that is to be prosecuted at the trial is known before dealing with the defendant’s notice of motion.

10 A solicitor in the employ of the solicitor for the prosecutor has sworn an affidavit whereby she asserts that the grounds for the application to amend the summons are that:

on the advice of senior counsel, since the charge is of an offence of carrying out development without development consent where such consent is required, it is an offence contrary to a combination of the first limb of section 125(1), section 76A(1) of the Environmental Planning and Assessment Act 1979, and the relevant environmental planning instrument – in this case Gosford Interim Development Order No 122. Accordingly, the references in the charge in the present summons to the prosecutor’s Tree Preservation Order are unnecessary and misleading and thus should be removed.

11 The essence of the charge in the summons filed in 2005 is that the defendant “did commit an offence under s 125(1) of the EPA Act” in that he did “without obtaining development consent from the Prosecutor and contrary to the provisions of the Prosecutor’s Tree Preservation Order…carry out development…which development under cl 35 of the PSO could not be carried out without consent, in breach of s76A of the Act”. The “PSO” is not defined. I assume it is intended as a reference to the IDO.

12 If the summons is amended in the way contended by the prosecutor there will still be a charge that the defendant committed an offence under s 125(1) of the EPA Act in that he did “carry out development that needed consent, contrary to s76A(1) of the Act”. However the amended particularised development is described as “being development for the purposes of agriculture or of subdivision, contrary to the provisions of cl 5(2) and zone 7(a) Conservation and Scenic Protection (Conservation) of the IDO”.

13 The particulars of the alleged development are to be expanded to include clearing and underscrubbing in addition to the cutting down, removal, injuring and wilful destruction of trees and rainforest vegetation. The original summons alleges that the dates between which the offence took place were 5 May 2004 and 8 June 2004. The proposed amendments extend the commencement of the period back to 14 April 2004.

14 The original allegation therefore is that development was carried out without obtaining development consent contrary to the provisions of the prosecutor’s Tree Preservation Order and cl 35 of the PSO, whereas the prosecutor now proposes to allege that the development carried out without obtaining consent of the prosecutor was development for the purposes of agriculture or of subdivision contrary to the provisions of the IDO. The changes are fundamental.

15 Whereas the particulars of the acts of the defendant alleged in the summons were limited to the cutting down, removing and wilful destruction of trees and rainforest vegetation the new essential element of the alleged offence would be the carrying out of agriculture or of subdivision, contrary to the provisions of a previously unidentified clause in the deemed environmental planning instrument, Gosford IDO 122. The raising of the amendment suggests that the cutting down, removal, injuring and wilful destruction of trees and rainforest vegetation is not of itself development the carrying out of which without consent amounts to a breach of s 76A of the EPA Act, whereas the carrying out of development for the purposes of agriculture or subdivision without consent is such an offence. If that is correct, the consequence may be that the elements of the charge articulated in the summons, as presently drawn, do not allege a chargeable offence.

16 Section 76A(1) requires that if an environmental planning instrument provides a person shall not carry out development except with development consent the person must not carry out the development without first obtaining that consent. The allegation of an offence under s 125(1) by reference to s 76A is to be maintained if the amendments are permitted. Mr Buchanan SC, who appears for the prosecutor, confirms the need for the change to avoid confusion as the reference to the TPO and cl 35 of the PSO is wrong. Mr Buchanan argues that the reference to the TPO is misleading and can be removed without changing the charge. It is his contention that the amendment of the summons is not necessary as the offence alleged has always been under s 125(1) and s 76A of the EPA Act. He says, by way of justification, that the defendant is entitled to have the charge amended so that in the interests of justice he is not prejudiced by the lack of particularity or misleading particulars.

17 For the reasons given by Tobias JA delivering the judgment of the Court of Criminal Appeal in Anthony John Tauszik v Gosford City Council [2006] NSWCCA 193 the charge cannot be sustained in its present form. That is a more serious circumstance, in terms of an application to amend, than mere lack of particularity or misleading particulars, as Mr Buchanan puts it.

18 Section 43 of the Land and Environment Court Act provided that no objection shall be taken or allowed by reason of an alleged defect in substance or in form. Section 43 has been repealed.

19 The prosecutor relies on s 68 of the LEC Act to support the application for amendment. Section 68(1) provides:

(1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

20 In Woollahra Council v Dutruc Pty Ltd (1997) 95 A Crim R 344 at 347 Lloyd J identified an express power to amend in Division 2 of Part 75 of the Supreme Court Rules incorporated into the Land and Environment Court Rules by Part 6 rule 2(1). At the time Dutruc was decided, Part 75 rule 6 applied Part 20 of the Supreme Court Rules upon which Justice Lloyd relied. By amendment to Part 6 rule 2(1) of the LEC Rules the application of the provisions of Part 75 applying to proceedings brought in the Court’s summary jurisdiction as in force immediately before the commencement of the amendment to the Supreme Court Rules form part of the LEC Rules and continue to apply to proceedings in class 5 of this Court’s jurisdiction. Lloyd J found that the effect of Part 20 rule 1(1) and (2) enables the Court at any stage of any proceedings to order that any document in the proceedings be amended in such manner as the Court thinks fit for the purposes of determining the real questions raised by or otherwise depending on the proceedings or of correcting any defect or error in the proceedings or of avoiding multiplicity of proceedings.

21 However there is no hard and fast principle that establishes when it is appropriate for a charge to be amended. The difficulty is demonstrated by the observations of Dixon J in Broome v Chenoweth (1946) 73 CLR 583 at 601 as follows:

Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion… Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.

22 In Traveland Pty Ltd v Doherty (1982) 63 FLR 41 the Full Court was dealing with a general allegation that the defendant contravened a section of the Trade Practices Act 1974 without anything further being stated. The opinion was expressed at 50 that a general allegation cannot operate as a basis upon which a failure to specify the necessary elements of an offence can be rectified by conjecture “that it must have been intended to allege one or other of the alternative elements which would make good the deficiency”.

23 In terms of the elements of the offence that must be alleged the majority held at 49:

…it is necessary that the summons, upon information, instituting a prosecution for an offence under the Act should make clear the precise offence with which the accused is charged and allege against the accused all the elements of that particular offence: see, generally, Broome v Chenoweth (1946) 73 CLR 583, at pp. 594-595, 600-601; Ex parte Price (1899) 20 LR(NSW) 343; Tregilgas v Howie [1926] SASR 122; Bastin v Davies [1950] 2 KB 579…

24 After identifying the limits of speculation referred to earlier Bowen CJ, Deane J and Toohey J held at 50-51 as follows:

… such identification underlies the failure of the information and summons to allege against Traveland all the elements of an offence under s53(c) and demonstrates that the question whether or not it was intended to allege all such elements and, if so, the identification of the missing element, lie in the realm of speculation. In those circumstances, the conclusion is inevitable that both information and summons are defective (see Broome v Chenoweth , at p. 600).

25 In Ex parte Parkinson (1909) 26 WN(NSW) 7 it was submitted that an information was bad for not alleging that the charge was laid under a particular by-law. Simpson ACJ at 8 recognised that the omission could be cured but that under the terms of s 65 of the Justices Act, which then applied, if the defendant was deceived or mislead in any way or hampered in his defence it would have been the duty of the court to grant him an adjournment if he had applied for it.

26 Prior to the repeal of s 43 the Court held that a charge that omits an essential legal element of the offence is incurable whereas a charge that omits an essential factual ingredient may still be maintainable (McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 at 12). However it is not always the case that a failure to state an element of the offence charged will result in a finding that the charge is a nullity (Cahatapative v R (2004) 146 A Crim R 542; R v Bartelesi (1997) 41 NSWLR 641 at 650 and the authorities therein referred to).

27 In Wehbee v Voulgarakis (1991) noted at 9 Petty Sessions Review 4363, to which Hodgson JA referred to in Bartalesi, Studdart J allowed the substitution of an alternative section in the pleadings. The charge was eventually the same but the amendment referred to new legislation that replaced an earlier Act. That is not strictly the present case where the legislation is the same in both cases. Some elements of the charge are entirely different.

28 The questions to be resolved are whether the summons fails to disclose any possible offence or alternatively whether any of the so-called factual ingredients that the prosecutor now seeks to add by the proposed amendment are properly legal elements of the charge. In either case the summons may be defective and not capable of amendment (Traveland and McConnell Dowell).

29 There are four separate legal grounds of liability arising under s 125(1):

(1) Where something directed to be done under the Act remains undone.

(2) Where something forbidden to be done under the Act is done.

(3) Where something directed to be done by an authority pursuant to a power under the Act remains undone.

(4) Where something forbidden to be done by an authority pursuant to a power under the Act is done.

30 These are the four alternative legal elements for a charge and one of them must be established by the prosecutor as a matter of law for an offence to be made out. They are required to be pleaded in the charge (Ex Parte Lovell; Re Buckley (1938) SR(NSW) 153). The legal elements may be proved by relying on appropriate factual ingredients that are pleaded to inform a defendant of the case that is required to be met.

31 In the present case the prosecutor claims the essential legal elements of the charge are that in breach of s 76A(1) the defendant did carry out development on land to which an environmental planning instrument applied without obtaining a consent where the said instrument provides the specified development may not be carried out except with development consent. If that is correct then, so the prosecutor says, the essential factual ingredients of the charge as pleaded include:

(a) IDO 122 applied to the land.

(b) Contrary to the provisions of the TPO development carried out by the defendant comprised cutting down, removal, destruction of trees and rainforest vegetation.

(c) Clause 35 of the PSO (IDO) provided development could not be carried out without consent.

(d) Development consent was not obtained.

32 Arguably the reference to the zoning is surplusage for the purpose of the way in which the pleading is currently framed. The problem for the prosecutor is that cl 35 of the IDO does not contain a provision that development may not be carried out except with development consent. Furthermore the TPO is not an environmental planning instrument.

33 The prosecutor says that the proposed amendments to the summons do not alter the legal elements of the charge and that the essential factual ingredients of the amended charge would be:

(a) The land is within zone 7(a) Conservation and Scenic Protection (Conservation) under IDO 122.

(b) Development was carried out by the defendant comprising clearing and underscrubbing, cutting down, removing, injuring and wilfully destroying trees and rainforest vegetation for the purpose of agriculture or of subdivision.

(c) The development was carried out contrary to cl 5(2) of the IDO which provides that development that needs consent is specified in relation to the relevant zone in the table.

(d) The table in relation to the 7(a) zone specifies development for the purpose of agriculture as development that needs consent.

(e) The table in relation to the 7(a) zone specifies development for the purpose of subdivision as development that needs consent.

(f) The defendant did carry out the development without obtaining consent of Gosford City Council.

34 The summons refers to the clearing of vegetation by reference to a different provision when it identifies the TPO as a relevant instrument and draws attention to cl 35 of the IDO rather than cl 5(2). The reference to the purpose of agriculture or of subdivision fundamentally changes the nature of the charge that development was carried out without the relevant consent.

35 What can be understood from the summons is that it is alleged the defendant carried out development without obtaining development consent in breach of s 76A of the EPA Act thereby committing an offence under s 125(1) of the Act. It did not, in terms, charge the defendant with any possible offence against s76A(1). For the reasons explained in Tausik and previously identified and adopted by this Court in Hornsby Shire Council v Clyne (1998) 99 LGERA 432 and Hornsby Shire Council v Winsloe (1998) 101 LGERA 117 it arguably gave particulars of the second limb of a possible charge under s 125(1) of the EPA Act.

36 In Winsloe Bignold J found that a failure to include an averment that the “written consent of the council” was not given amounted to the omission of an essential legal ingredient of the offence which could not be rectified by any relevant power of amendment. By contrast, the summons, in its present form in this case, expressly refers to the allegation that the defendant did “without obtaining development consent from the prosecutor” carry out development.

37 Section 76A(1) of the EPA Act has not been and cannot be enlivened by the provisions of cl 35 of the IDO which provides:

(1) Where it appears to the Council that it is expedient for the purpose of securing amenity or of preserving existing amenities it may for that purpose make an order and may by like resolution rescind or vary such order.
(2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or desctruction of any tree or trees specified therin, except with the consent of the Council and any such conditions as the Council may think fit.
(3) A tree preservation order may relate to an tree or trees or to any specified class, type or description of trees on land described particularly or generally by reference to the land, the subject of this Order, or any part thereof.
(4) The Council shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which land described in the order is situated.
(5) In any proceedings under this Clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed was or were dying or dead or had become dangerous.

38 There is no relevant distinction between cl 35 of the IDO and cl 44 of the Gosford Planning Scheme Ordinance relied upon by the prosecutor in Tauszik. Accordingly no offence can be provided under cl 35 of the IDO as it does not specify any development that may not be carried out except with development consent. The difficulty is that the charge as framed assumes wrongly that cl 35 of the IDO contains the very prohibition which cl 35 empowers the Council to include in a TPO (Tauszik at [57]). Whether a charge under the second limb of the section is available was not a matter that needed to be decided in Tauszik. All the CCA was required to determine was whether the charge in the summons fell within the first limb of s 125(1). If it did not the prosecutor did not have the benefit of the limitation period of twelve months provided in respect of offences under the first limb. It was accepted that, even if there was an offence properly alleged under the second limb of the section, which was not decided, the proceedings were required to be commenced within 6 months and were therefore out of time. The determination of the applicable limitation period was the critical issue that caused the CCA to dismiss the summons. For present purposes it matters not that a charge may have been made under the second limb of s 125(1). Based on the findings in Tauszik the charge alleged adopts elements of the second limb of s 125(1) by reference to the TPO but nonetheless is framed as a charge based on a breach of s76A.

39 The following observations by Ipp A-JA at [13] in McConnell Dowell explain the parameters for discerning between the legal elements of an offence and essential factual ingredients:

It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed.

40 In my view the present case is at the other extreme identified by Dixon J in Broome namely the summons contains nothing that identifies the elements of the offence with the charge. The missing elements lie in the realm of conjecture (Traveland). What the prosecutor is now seeking to allege depends upon an entirely new set of elements. Following Broome the defects in the summons are not covered by the powers of amendment.

41 As a consequence of the above analysis and findings I am not disposed to make order 1 in the Notice of Motion filed by the prosecutor. Leave to amend the summons is refused.

The Application to Exclude Evidence

42 It is the defendant’s submission that the evidence of Rowan Hayes, Jonathan Scorgie, Graham Murray and Leah Wheatley contains elements of contamination and improperly obtained information.

43 In addition to an allegation of contamination and improperly obtained evidence also levelled against Dr Robert Payne and Michael Clarke the defendant also asserts that their evidence breaches the obligation of confidentiality referred to in the notice of motion. Although no direct evidence from Dr Helen Monks is relied upon by the prosecutor the defendant’s argument is that, as she is the instigating source of the reports to council, her confidential agreement with the defendant leads to a finding that the evidence of the other witnesses constitutes unlawful, misleading or seriously tainted evidence that should not be admitted having regard to the provisions of the Evidence Act.

44 The defendant’s argument stems from two factual circumstances.

45 Firstly, as the principal of Highlight Consulting, Dr Helen Monks, entered into an agreement with the defendant on 7 July 2003. In that agreement Highlight Consulting was commissioned to prepare and submit to council a development application for subdivision, without any attempt at rezoning. Two specific provisions of the agreement are critical to the defendant’s claim:

Contractors to Highlight Consulting
From time to time, contractors may be engaged by Highlight Consulting to undertake work to fulfil the requirements that you have of Highlight Consulting. The choice of such contractors may or may not be discussed with you. In any case, Highlight Consulting is responsible for their work and for all communications with them in relation to the work. In order to protect any negotiations and to ensure quality and efficiency in overall administration of your work, all contact between you and any such contractors shall be through Highlight Consulting. Such work may or may not be the subject of a fixed price offer or an estimate prior to commencement of work, for your consideration and agreement.
Confidentiality and Legal Relationship
Highlight Consulting agrees to keep confidential any information relating to your affairs that is obtained by us in providing the commissioned services, unless this clause prohibits us from rendering those services.
We confirm that the services provided to you are by way of providing advice and in no was are they to be construed as Highlight Consulting taking part in the management of your affairs.
Highlight Consulting retains copyright over its intellectual property.

46 Secondly, Dr Monks informed the Court in oral evidence given at an interlocutory hearing that she engaged Dr Payne and Mr Clarke as part of the contract made with Mr Brand. She explained her relationship with Mr Brand as follows:

I was not engaged as a developer. I’m a town planning consultant and my contract – the contract off my PC which was tendered originally and now the copy which is signed which is identical other than the signatures and the letterhead which I produced this morning, they specify what my services are, or infer them, and I’m not a developer.

47 She agreed that she engaged Dr Payne and Mr Clarke as part of the contract. She admits she made a complaint to council regarding the actions of the defendant on 20 May 2006. She concedes that she never informed her client, Mr Brand, about the complaint she made to council.

48 Dr Monks agrees that prior to writing a letter to the council on 20 May 2004 she previously attempted to speak to the Director of Environmental Planning at the Council on the telephone. When unable to do so, she left a message with her secretary. Following that she informed Dr Payne and Mr Clarke that she had contacted the council.

49 Mr Brand has sworn an affidavit. He asserts that in pursuance of the contract and agreement with Highlight Consulting he paid a sum in excess of $30,000 between the signing of the agreement and May 2004 when Dr Monks made her complaint to council.

50 In an affidavit Michael Clarke describes himself as a Bushland Management Consultant trading as Ecological Restorations Company and that he was engaged by town planner Dr Helen Monks of Highlight Consulting in 2003 to prepare a Bushland Management Plan for the property the subject of the proceedings. His affidavit explains the nature of the work he undertook in respect of the site and gives evidence of observations regarding the actions of the defendant relative to the alleged offence. It is apparent from the reading of that evidence that the knowledge Mr Clarke has gained and the observations that he makes are as a direct consequence of his association with the site and the defendant following his engagement by Dr Monks.

51 Dr Robert Payne deposes in an affidavit that he is an ecologist trading as Robert Payne Ecological Survey and Management and that he was engaged by Dr Helen Monks of Highlight Consulting Pty Ltd, town planners, to assist the owner of the land with his proposed community title subdivision. He states that he was specifically engaged to prepare an ecological assessment of the land and prepared a report as a result of that process. Dr Payne also gives evidence of his observations and conduct attributed to the defendant in relation to the alleged offence. It is also apparent from his evidence that his knowledge and understanding had been gained as a direct consequence of the engagement of his services by Dr Monks.

52 It is submitted on behalf of the defendant by Mr Fitzgibbon, that Dr Payne and Mr Clarke were sub-contractors to Highlight Consulting and consequently were bound by the agreement with Dr Monks. Mr Clarke has produced a document in draft form entitled “Job Plan 1, 14 January 2004” which states in part, under the heading “Communications”:

All communications with the client shall be through Highlight Consulting as a consequence of our contract with the client. Verbal or email communications with Council or other authorities should be documented through file notes for possible future reference.

53 Jonathan Scorgie is employed by the prosecutor as an Environmental Officer. After dealing with formal matters regarding the title to the land, its zoning and the identification of documents produced to the council in support of a development application made to the council by the defendant he gives evidence that on 21 May 2004 he received a letter dated 20 May 2004 from Dr Helen Monks, a copy of which is annexed to his affidavit. In the letter (on the letterhead of Highlight Consulting) after providing background information regarding her involvement on the site on behalf of the owner Dr Monks reiterated, in summary form, advice given to the defendant in relation to correct bush regeneration techniques and what she described as an education process with the owner and his operators. In the final paragraph of the letter the following statement is made above the signature of Helen Monks:

This morning I have received a call saying that clearing has continued and is likely to continue. I immediately attempted to contact you by telephone to request Council’s intervention. Your secretary, Rebecca, is dealing with my message. This letter provides a formal request to Council to take action to prevent future clearing/underscrubbing contrary to the law.

54 Leah Wheatley, an Environmental Officer employed by the prosecutor, has also sworn an affidavit. She says she inspected the defendant’s property on 27 May 2004 in the company of Jonathan Scorgie. According to Mr Fitzgibbon she appears to rely upon an introduction by Mr Scorgie to the acts that are attributed to the defendant as part of the prosecutor’s case.

55 It is apparent that Dr Monks maintained contact with council officers after the initial letter dated 20 May 2004 as demonstrated by the contents of an email between council officers extracted from the council file as follows:

I have just had a phone discussion with Helen Monks re: Cullens Rd, Kincumber. As you are now undertaking the investigations I advised Helen that you are now the officer conducting the investigation and that you may call upon Ms Monks to obtain more background information to determine what action Council may take.
Ms Monks has sought clarification on the action Council may take as she needs to determine her future client relationship. Ms Monks has request [sic] a formal response to her fax so she may determine what course of action she intends to take with Mr Brand.

56 Moreover on 1 June 2004 the council Environment Officer wrote to Dr Monks in the following terms:

Thankyou for your information regarding illegal land clearing being undertaken at Cullens Rd Copacabana. Council is actively investigating this matter. The owner has been served a notice to address the unconsolidated soil, and the land clearing matter is still under investigation.
If you have any more information or would like to discuss this matter further, please contact the undersigned.

57 There is other peripheral evidence that corroborates that Dr Monks continued to assist the council with its enquiries after making the initial complaint on 20 May 2004. Nevertheless she appears not to have taken any overt action to terminate or clarify her professional relationship with the defendant.

58 In other contexts the courts have recognised that communications in confidence can according to circumstances be protected as privileged.

59 The term “protected confidence” is defined in s 126A in broad and wide language limited only by the circumstance in which the communication is made namely where the confidant is acting in a professional capacity and there was an express or implied obligation not to disclose its contents. I am prepared to accept that the defendant entered into a relationship with Dr Monks in her professional capacity and that there was an express obligation placed upon her under the agreement not to disclose the “affairs” and information obtained in the course of rendering services to the defendant. Arguably the obligation of confidence extended to persons who were engaged vicariously by Dr Monks to perform functions of a professional nature under the terms of the contract with the defendant. The nature of the relationship between those persons retained by Dr Monks and the defendant is for present purposes assumed to be one that attracts the same degree of confidentiality that applies to Dr Monks.

60 If it were not for an agreement such as the present there would be considerable doubt that protection could be expected to extend to a relationship between a professional such as a town planner and their client. Such a relationship would not normally attract the element of the public interest that ensures that relationships can be conducted in a way that does not inhibit full and frank disclosure such as the relationship between a doctor and patient.

61 The answer to the dilemma may lie in the identification of the harm that may result as a breach of confidentiality in respect of communications made by the relevant persons. In the case of a doctor and patient it would often be the case that the patient needs to disclose private activity or circumstance to enable the doctor to effectively treat a particular ailment. In the absence of a freedom to make full and frank disclosure to the doctor a patient might be reluctant to discuss all of the circumstances relevant to diagnosis and treatment.

62 In the case of a relationship between a town planner and her client it is open to conclude that a consultant such as Dr Monks might in the course of her duties have access to information communicated to her that should not be disclosed to others (for example competitors) for commercial reasons.

63 The test frequently adopted in equity to determine whether there is an obligation of confidence contains three necessary elements:

1. The necessary degree of confidence.

2. Information must have been received in circumstances where the obligation of confidence applied.

3. It is reasonable to accept that there were reasonable grounds to appreciate that the information was given in confidence ( Coco VA v Clarke Engineers Ltd (1969) RPC 41).

64 The test is not dissimilar to that provided for a protected confidence pursuant to s126B-126E as follows:

(a) the evidence must be a communication by the Defendant,

(b) made in confidence,

(c) to a person in the course of a relationship in which the latter person (a ‘confidant’) was acting in a professional capacity,

(d) when the confidant was under an express or implied obligation not to disclose its contents.

65 The harm identified by Mr Fitzgibbon is the effort and time spent on generating documentary material in support of a development application that has been wasted together with an outlay of considerable professional fees. This financial disadvantage and alleged lost opportunity is to be coupled with the damage to the defendant’s reputation and the consequential shame and humiliation arising from the subsequent investigation and prosecution. The nature and extent of this harm is required by s 126B(3)(a) and 4(e) to be weighed against the desirability of the evidence being given in order to determine whether the court gives a direction pursuant to subs (1) or (3).

66 The nature of the services to be provided by Dr Monks through her company and with the assistance of other professionals are described in the agreement as “providing advice” and “to prepare and submit to Council a Development Application for subdivision without any attempt at rezoning”.

67 The only evidence of a direct statement or communication by the defendant to any person is of conversations with Michael Clarke (one of which at least appears to be in the presence of Dr Monks), Jonathan Scorgie and Leah Wheatley. The only conceivable harm to the defendant that could arise from the evidence of conversations with Mr Clarke is that Mr Clarke gave him certain advice regarding the state and nature of vegetation on the land and the manner of dealing with it in terms of clearing it for future development.

68 There is evidence of a reported expressed concern by Mr Brand that if certain things happened the council would refuse his development application. But the more critical evidence from Mr Clarke is in respect of his observations of activities carried out on the land by the defendant. Dr Payne gives no evidence of a communication with the defendant. However there is hearsay evidence from Dr Payne of the above conversations between the defendant and Michael Clarke.

69 The High Court has consistently maintained the principle that a person who has a duty to maintain confidentiality will not be allowed to escape from his obligations merely because he alleges that crimes have been committed. It is nevertheless in the public interest that he should disclose information relating to them. Gibbs CJ pointed out in A & Ors v Hayden & Ors (1984) 156 CLR 532 (particularly at 546) that there is a burden on that person to establish the facts to show that a plain and definite case has been raised. Accordingly a prima facie case must be established that the failure to disclose the information would tend to obstruct the course of justice and would be contrary to the public interest. There must be reasonable grounds to believe that there is a bona fide charge against the defendant and that it is reasonably tenable (at 547).

70 A & Ors related to an injunction to protect the disclosure of information. Nevertheless the principle reiterated by all members of the court is instructive in respect of the effect of ss 126A and 126B of the Evidence Act which heretofore (so far as my researches show and indeed the research of counsel for both sides reveal) has not been the subject of definitive judicial determination.

71 The prosecutor has produced affidavit evidence upon which it proposes to rely to show that the defendant carried out particularised activities in the absence of a development consent. The evidence provides reasonable ground to believe that the defendant could be implicated in the commission of an offence.

72 Moreover, and more telling, is a comparison between the subject matter of the so-called confidentiality agreement and the acts complained of. The agreement was entered into by Dr Monks, through Highlight Consulting, for the purpose of giving advice in relation to a prospective development application. The subsequent carrying out of the development was presumably to be in accordance with that consent. It was no part of the brief stated in the written agreement that an advisor or consultant would have a professional role to play in the carrying out of any development in breach of the law. To the contrary the consultant was engaged for the purpose of assisting the defendant to comply with the law.

73 Having regard to the matters enumerated in s 126B(4), even if there is a protected confidence as defined, the consequence of considering each of those matters does not lead me to exercise the court’s discretion to give a direction under the section. Although not critical to the prosecutor’s case, as Mr Buchanan SC readily concedes, the information provided by the witnesses Mr Clarke and Dr Payne will be important to show that the defendant was implicated in the alleged actions of clearing vegetation. The offence is a serious one judged against the maximum penalty in excess of one million dollars.

74 Notwithstanding the wider submission by Mr Fitzgibbon the only real likelihood of harm is that the defendant might suffer a conviction as a consequence of his illegal actions if the charge is proved against him. No policy reason has been espoused which justifies the suppression of the evidence in the interests of the defendant under the circumstances of this case.

75 It is important to note that consultants were commissioned to prepare reports in support of any development application. It is therefore reasonable to accept that inevitability there would be disclosure of any clearing as a consequence of the assessment of the state of the vegetation and general condition of the land at any relevant time.

76 Rowan Hayes is a teacher of Natural Resources Assessment. He has sworn an affidavit in the proceedings. His evidence is to the effect that on or about 18 May 2004 he made observations to relate to activities on the subject property. He made a telephone call to Gosford City Council. He also describes further observations made “about a week after” 18 May 2004. Although his evidence is equivocal it is interpreted by the defendant as disclosing a trespass onto the subject property, at least on one occasion.

77 Graham Murray is another witness relied upon by the prosecutor and he swore an affidavit in the proceedings on 23 September 2005. There is some evidence from Mr Hayes that Graham Murray had a meeting with some members of the McMasters Beach and District Progress Association and other interested people in the lower reaches of Merchant’s Gully (which I infer is part of the defendant’s property). Mr Murray makes certain observations referred to in his affidavit. An allegation of trespass will be made in regard to the collection of Mr Murray’s evidence.

78 It may well be that at the hearing there is an opportunity for the evidence of Mr Hayes and Mr Murray to be clarified but as it stands at the moment it does not justify a formal order under s138 of the Evidence Act.

79 Ultimately issues of admissibility of evidence must be finally determined by the trial judge. I am not prepared to make the orders that the defendant seeks in its Notice of Motion based upon the evidence presented to me at this interlocutory stage. It is not appropriate to pre-empt the exercise of the discretion of the trial judge by making an order by way of dismissal or otherwise that would preclude the further raising of the same issues by the defendant at the trial. Although I refuse to make the orders in the defendant’s notice of motion decision is based on the prevailing evidentiary circumstances.

Orders

80 The formal orders of the Court are:

1. The prosecutor’s notice of motion is dismissed.

2. The defendant’s notice of motion is dismissed.

3. Costs in relation to all notices of motion are reserved.

4. Exhibits may be returned.