Graymarshall Pty Ltd v Director-General of the Department of Environment, Climate Change and Water - [2010] NSWLEC 54

No judgment structure available for this case.

Reported Decision: 173 LGERA 258

Land and Environment Court

of New South Wales

CITATION: Graymarshall Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2010] NSWLEC 54

PARTIES:
APPLICANT
Graymarshall Pty Ltd
RESPONDENT
Director-General of the Department of Environment, Climate Change and Water

FILE NUMBER(S): 40956 of 2009

CORAM: Pepper J

KEY ISSUES:
PROSECUTION :- statutory notice served on company to provide documents and/or information pursuant to investigation for possible commission of statutory offence - deeming provision whereby liability of company imposed on directors and persons concerned with management of company subject to certain exceptions - whether privilege against exposure to penalties applied - held it does not
EVIDENCE :- privilege against exposure to penalty - whether applies to company served with notice to provide documents and information - held it does not

LEGISLATION CITED: Native Vegetation Act 2003 ss 3, 12, 36, 45

CASES CITED: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477
Harrison v Melhem (2008) 72 NSWLR 380
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1
Pyneboard Proprietary Limited v Trade Practices Commission; Dunlop Olympic Limited v Trade Practices Commission (1983) 152 CLR 328
R v Ronen (2004) 211 FLR 258
R v Ronen (2004) 62 NSWLR 707
Rich v Australian Securities and Investments Commission (2003) 183 FLR 361
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
Sharples v Minister for Local Government (2008) 166 LGERA 302; [2010] NSWCA 36
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commissioner (2002) 213 CLR 543
Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 123 ALR 503
Valantine v Technical and Further Education Commission (2007) 166 IR 459; 97 ALD 447

TEXTS CITED: Pearce and Geddes, Statutory Interpretation in Australia (6th ed)

DATES OF HEARING: 12 April 2010

EX TEMPORE JUDGMENT DATE: 13 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson
SOLICITORS
W J Grace & Co Solicitors
RESPONDENT
Ms A Mitchelmore
SOLICITORS
Department of Environment, Climate Change and Water

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

13 April 2008

40956 of 2009 Graymarshall Pty Ltd -v- Department of Environment, Climate Change & Water

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This case is about whether a notice issued pursuant to s 36 of the Native Vegetation Act 2003 (“the Act”) by an officer of the Department of Environment, Climate Change and Water (“DECCW”) to Graymarshall Pty Ltd (“Graymarshall”), to provide information and documents in respect of a potential unlawful clearing of native vegetation on property owned by it, is subject to the privilege against exposure to penalties thereby permitting Graymarshall to refuse production.

2 The notice was issued by Mr Scott Beaumont. Mr Beaumont required Graymarshall to provide the information and documents as categorised.

3 DECCW is investigating whether the clearing of vegetation on the property may have resulted in an offence under s 12 of the Act. No proceedings have been commenced against Graymarshall or any other person.

Summary of Decision

4 In my opinion, the summons ought to be dismissed. The reasons for this are two-fold: first, the privilege does not apply to corporate entities and the notice was issued to Graymarshall and not to its directors or any other persons concerned with the management of the company, and second, the privilege is not available in the context of investigative proceedings where DECCW merely seeks the provision of information in order to determine if a contravention of the Act has occurred.

The Notice

5 The notice was dated 15 September 2009, and was issued not to the directors of Graymarshall but to the “proper officer” of the company itself.

6 The notice contained the following warning:

The fact that information and/or documents required by this notice might incriminate you or make you liable to a penalty does not excuse you from having to comply with this notice. However if you are a natural person (that is, an individual rather than, for example, a company or other incorporated body) information and/or documents obtained under this notice are not admissible in evidence against you in criminal proceedings, except for an offence under s 36 of the Act, including the offence of knowingly answering a question falsely or in a way that is misleading in a material particular.

Issues

7 In its points of claim filed 2 March 2010 Graymarshall initially claimed that the notice was invalid and of no effect for the following reasons:

(a) Mr Scott Beaumont was not appointed or was not properly appointed as an authorised officer under the Act;

(b) there was no, or no proper, delegation to Mr Beaumont to issue the notice under the Act;

(c) the notice did not require answers in accordance with s 32(2)(a) to be given by a competent officer;

(d) the notice did not, or did not substantially, require “relevant information” as defined in s 36 of the Act;

(e) the terms of the notice required the company, rather than directors or employees of the company, for information; and

8 In the alternative, Graymarshall claimed that if the notice was found to be valid, then in the circumstances it was excused from providing information and/or production of the documents on the grounds that in order to comply with the notice it would, or would tend to, expose the company to penalties under the Act.

9 However, at the hearing the issues in paragraph 7(a)-(e) above were abandoned leaving only two issues, namely, those contained in paragraphs 7(f) and 8. No submissions, either orally or in written form, separately addressed the issue raised in paragraph 7(f). I have therefore assumed that this issue has been subsumed into the privilege issue raised in paragraph 8 and subject to two remarks, I have not separately dealt with it.

Legislative Framework for the Issuing of the Notice Under the Act

10 The objects of the Act are set out in s 3 of the Act. They state:

3 Objects of Act

The objects of this Act are:
(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,
in accordance with the principles of ecologically sustainable development.

11 The offence of unlawful clearing of native vegetation is set out in s 12, which states:

12 Clearing requiring approval

(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

12 Section 126 of the Environmental Planning and Assessment Act 1979 relevantly states:

126 Penalties

(1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

13 Section 36, the critical provision in this application, is found in Div 3, which is entitled “Director-General’s Powers”. Division 3 is contained in Pt 5 of the Act, which is entitled “Enforcement”. It states as follows (emphasis added):

36 Power to obtain information

relevant information

(3) An authorised officer may inspect a document produced in response to such a notice and may make copies of, or take extracts or notes from, the document.

Maximum penalty: 100 penalty units.

(5) A person is not excused from giving information, answering questions or producing documents under this section on the ground that the information, answers or documents may tend to incriminate the person.

(6) Any information or document obtained from a natural person under this section is not admissible against the person in criminal proceedings other than proceedings for an offence under this section.

14 The Act is silent in respect of the privilege against exposure to penalties.

15 Section 45 attributes any liability of the corporation for a contravention of the Act to the directors and persons concerned with the management of the company, subject to certain exemptions. It relevantly provides:

45 Offences by corporations

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

Evidence

16 The applicant relied on an affidavit of its solicitor, Mr William Grace, sworn 9 December 2009. It annexed the notice and stated that answers and information to the notice had been prepared and were held by Mr Grace. No evidence was given by Mr Grace as to the structure, size or operation of Graymarshall.

17 DECCW relied on an affidavit of Mr Scott Beaumont affirmed 16 March 2010. Mr Beaumont is the Investigator with the Special Investigations Unit of DECCW.

18 He stated that on 4 March 2009, he received information from his manager regarding the possible clearing of native vegetation on the property owned by Graymarshall. An investigation into the information commenced. It was pursuant to this investigation that the notice was issued.

19 Mr Beaumont further stated that he is an authorised officer for the purpose of the Act. An instrument of authorisation dated 27 November 2007 was attached to his affidavit together with a copy of the instrument of delegation of ministerial functions and a copy of the delegation of the Director-General’s power under s 36.

20 Annexed to Mr Beaumont’s affidavit was a company search dated 15 March 2010, which listed Mr Murray Gray and Mr Darrin Marshall as the sole directors and shareholders Graymarshall. Mr Darrin Marshall is also listed as the company secretary. No other evidence concerning the company was, however, given.

Submissions of Applicant

21 The applicant’s submissions may be summarised as three-fold, namely:

(a) that s 12(2) of the Act provides for a penalty for the purpose of invoking the privilege against exposure to penalties;

(b) notwithstanding that the privilege does not apply to corporations, because of the deeming provision contained in s 45 of the Act attributing the liability of the corporation for a contravention of the Act to its directors or persons concerned in the management of the company, the privilege is nevertheless available as a matter of construction; and
(c) the privilege is available notwithstanding that these are non-judicial proceedings.

Consideration

The Privilege Against Penalties Is Not Applicable to Graymarshall

22 There are few cases concerning the operation of s 36 of the Act. Those that do exist are regrettably not of assistance. Curiously, the issue the applicant raises in these proceedings does not appear to have been the subject of any decided authority notwithstanding that tandem provisions similar to ss 36 and 45 of the Act exist in other statutes (see, for example, ss 191,193, 212 and 143 of the Protection of the Environment Operations Act 1997; ss 156B and 175B of the National Parks and Wildlife Act 1974; ss 53 and 56 of the Marine Pollution Act 1987; ss 62 and 26 of the Occupational Health and Safety Act 2000; ss 37 and 77 of the Food Act 2003 and ss 106 and 136 of the Rail Safety Act 2008).

23 Irrespective of the lacuna of case law directly on point, a review of the decisions concerning the privilege against exposure to penalties reveals that it is inapplicable in this case.

24 It was not in dispute that s 12(2) of the Act ought properly be characterised as punitive and imposes a relevant penalty.

The privilege is not available to Graymarshall as a corporate entity

25 It is now beyond doubt that the privilege against exposure to penalties is not available to corporations (for a comprehensive exposition of the history of the privilege see the dissenting judgment of McColl JA in Rich v Australian Securities and Investments Commission (2003) 183 FLR 361 at [195] – [257]). In The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commissioner (2002) 213 CLR 543 the High Court stated (at [31]):

…It should now be accepted that, as the privilege against self-incrimination is not available to corporations, the privilege against exposure to penalties is, similarly, not available to them.

26 In so holding, the Court in Daniels cited the decision in Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 123 ALR 503. In that case, a bench of five held that the privilege did not apply to corporations. The issue rose in the context of proceedings commenced by the Trade Practices Commission for injunctive relief and recovery of penalties under s 76 of the Trade Practices Act 1974 (Cth). The respondent contended that it did not have to answer notices to produce on that basis that to do so would expose it to the imposition of a civil penalty. After reviewing the authorities on the development of the privilege against exposure to penalties and the privilege against self incrimination, including the decision in Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, Burchett J (with whom Black CJ and Davies JJ agreed) stated (at 533-534):

Caltex

27 To the extent that the applicant draws support from the absence in s 36 of the Act to any reference to the privilege against exposure to penalty, the decision of the High Court in Pyneboard Proprietary Limited v Trade Practices Commission; Dunlop Olympic Limited v Trade Practices Commission (1983) 152 CLR 328 indicates that this is not determinative.

28 In Pyneboard, s 155(7) of the Trade Practices Act referred only to a person not being excused from complying with the notice on the grounds that the information or documents produced might tend to incriminate them. The provision was silent in respect of the privilege against exposure to penalty. The Court held that notwithstanding any express reference to the latter privilege, the section nevertheless impliedly abrogated it. As the majority noted (at 345 per Mason ACJ, Wilson and Dawson JJ) it was “irrational to suppose that Parliament contemplated that a person could be compelled to admit commission of a criminal offence yet be excused from admitting a contravention of the Act sounding in a civil penalty”.

29 The reasoning in Pyneboard in this regard was affirmed in Daniels where the Court (at [30]) stated:

30 The implication that the privilege against exposure to penalties was abrogated by s 155(1) can be supported by reference to the absurdity that would result if that privilege could be claimed and, pursuant to s 155(7), the privilege against self-incrimination could not. However, it may be that a more secure basis for the decision is to be found in the nature of the privilege.

30 The applicant distinguishes Daniels and its predecessors by arguing that because s 45 of the legislation imposes the liability of the company on the individual directors and persons concerned with the management of the company (assuming the matters contained in s 45(1)(a)-(c) cannot be satisfied), the notice is, as a matter of practical reality, directed not just towards the corporation, but also to the natural persons standing behind it. Thus because the notice requires documents and information to be disclosed which may inculpate individuals this, the applicant submits, is sufficient to require a construction of s 36, absent any express words to this effect, which includes the privilege against exposure to penalties. Or putting it another way, it cannot be said that by necessary implication the privilege has been abrogated.

31 In aid of this interpretation, the applicant referred the Court to the recent High Court decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1. In Kirk it was held that jurisdictional error had been committed because of errors in the construction of s 15 of the Occupational Health and Safety Act 2000 and a failure to comply with the rules of evidence by permitting a person accused of a crime to give evidence on behalf of the prosecution (summarised at [54]).

32 The applicant contended, applying Kirk, that if Graymarshall was later charged with an offence under the Act, it could not have the material it furnished in response to the notice used against it during the prosecution. It would therefore be perverse, it was submitted, if the material and information supplied pursuant to the notice could nevertheless be used in the prosecution of the individuals standing behind the company.

33 However, in my opinion, the proper construction of ss 36 and 45 precludes the availability of the privilege to Graymarshall. First, as a separate legal entity Graymarshall has an independent obligation to comply with any notice served upon it pursuant to s 36. The submissions of the applicant incorrectly conflate the separate legal identity of Graymarshall with that of its individual directors and managers.

34 The respondent submitted, with which I agree, that the present obligation on Graymarshall is no different than that of a corporation required to comply with a subpoena to produce notwithstanding that the subpoena is addressed to “the proper officer”. Thus just as the corporation has an obligation to produce the material the subject of the subpoena (or, for example, to comply with an order for discovery or interrogatories) irrespective of whether or not the material produced may tend to incriminate particular individuals within that company, a similar obligation exists on Graymarshall to answer the s 36 notice.

35 A single illustration will suffice. In Ronen, both at first instance (R v Ronen (2004) 211 FLR 258) and on appeal (R v Ronen (2004) 62 NSWLR 707), subpoenas were issued to the proper officer of companies, the sole director and secretary of which, had been charged with conspiracy to defraud the Commonwealth of income tax. It was argued by the accused that subpoenas that require their active participation in the process of gathering evidence that may be used against them was oppressive or, upon a closer examination of the argument ((2004) 62 NSWLR 707 at [102]), would infringe their privilege against self-incrimination. At first instance Whealy J rejected the argument in the following passage (at [43]-[44]):

43 The combination of the two sets of principles I have identified bring about this result: Where a subpoena duces tecum is served on a corporation, it is a subpoena to the corporation itself. The reference to "proper officer" in the subpoena does not in any way detract from the proposition that it is to the company itself that the subpoena is addressed. It is not addressed to any particular individual in the company, whether that individual be an “officer” or not. The subpoena assumes the company has the described documents in its possession. If that be the case, there is an obligation on the company, subject to the usual protections, to produce the documents to the Court. The obligation however is on the company, not on any individual.
44 The form of the subpoena recognises that the company itself may or will have to select an employee or agent to give evidence and produce the documents. It is a matter for the company to choose that person. The company cannot defeat the purpose of the subpoena, that is the production of the documents it has in its possession, by appointing as the person to produce the documents a director of the company accused of a criminal offence who may be implicated by the production of the documents. Nor can it defeat the purpose of the subpoena by refusing to appoint any person to answer the subpoena.

36 His Honour’s reasoning was upheld by the Court of Criminal Appeal, which noted that there was no evidence that the directors were the only “proper officers” who could be appointed to answer the subpoena. As Mason P concluded (at [112]-[113]):

112 The command of the subpoenas is addressed to the corporations. As legal entities they have independent duties to comply. “Corporate existence implies amenability to legal process” ( Wilson (at 374)). If it were shown to be the case (and it has not been thus far) that there is no-one with custody or possession of the records who could lawfully answer the call of the subpoena on the corporations’ behalf without risk of testimonial self-incrimination, then the corporations must still take steps to comply. This may mean the appointment of a receiver. Or it may mean that a “proper officer” with nothing to fear by way of self-incrimination has to be appointed (cf United States v Barth 745 F 2d 184 (2d Cir 1984) at 189, cert denied 470 US 1004; Re Two Grand Jury Subpoenae Duces Tecum 769 F 2d 52 (2d Cir 1985); Re Two Grand Jury Subpoenae Duces Tecum 793 F 2d 69 (2d Cir 1986) at 74; Braswell (at 116)).
113 For reasons already given, it is not to the point for the appellants to say that they are the present directing minds of the various corporations and that they personally would have to set in train the steps to “outsource” the performance of the duty falling on the corporations. To adapt the language of Lumbard J speaking for the court in Re Two Grand Jury Subpoenae Duces Tecum 793 F 2d 69 (2d Cir 1986) at 74: “¼ It is the duty of the [companies], not the [Supreme Court] or the [prosecution], to identify an appropriate custodian to produce subpoenaed documents. If no one may act as custodian without incriminating himself or herself, the firm is required to produce the subpoenaed records by supplying a new agent who has had no previous connection with the firm”.

37 The same reasoning applies by analogy here. The fact that the conviction of a corporation may lead to the conviction of the corporation’s directors or managers if proceedings are commenced against the corporation does not detract from the corporation’s obligations to comply with a notice served on it pursuant to s 36.

38 This is particularly so where no evidence has been presented to the Court by the applicant to indicate that persons other than those described in s 45(1) are not able to properly answer the notice.

39 The decision in Kirk does not, in my view, assist in the proper construction of s 36. Leaving aside the correctness of the applicant’s analysis of that case insofar as it would apply to any prosecution of Graymarshall, on its facts Kirk is very far removed from the present case. Kirk involved criminal proceedings where the prosecution had impermissibly called a defendant director to give evidence on behalf of the defendant corporation. In the present case, no charges have been laid against Graymarshall or any other person and it is Graymarshall, and not its directors or managers, who is being compelled to answer the notice.

40 Further, while the general principle that a statute will not be construed so as to abrogate or alter common law rights absent a clear legislative intent to do so remains (see the authorities collected in Pearce and Geddes, Statutory Interpretation in Australia (6^th ed) at [5.23] ff), it is now considered to be of “minimal weight” (Harrison v Melhem (2008) 72 NSWLR 380 at [3]-[8] per Spigelman CJ). This is because this so-called rule of statutory construction “reflects an earlier era when judges approached legislation as some kind of foreign intrusion”

41 A similar observation may be made about the canon of construction that an express reference to one matter (the privilege against self-incrimination) indicates that other matters are excluded (the privilege against exposure to penalties) (Pearce and Geddes at [4.28] ff, especially at [4.29] and see, in this context, the decision in Pyneboard referred to above at [27]).

42 Rather, it is now tolerably clear that canons of construction must give way to the objective purpose and intent of the legislation as determined by the Court (s 33 of the Interpretation Act 1987, CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 and Harrison at [14]).

43 Read in light of the objects of the Act contained in s 3, it is clear that the objective purpose of Pt 5 of the Act is to confer on the Director-General (and his or her delegate) wide investigatory powers which necessarily include the power contained in s 36 to compel the production of information and material specified in any notice issued pursuant to it. Viewed in this light, s 36 ought not be given the narrow interpretation afforded to it by the applicant. To do so would not only result in, to use the language of the High Court in Pyneboard and Daniels, “absurdity”, it would also effectively render nugatory the provision, particularly given the applicant’s construction of s 36(6), namely, that its application is only enlivened by notices issued to natural persons.

44 Further, whatever injustice the applicant perceives may potentially result by reason of individuals within Graymarshall having to furnish material and information in answer to the notice it is, in my view, ameliorated by, in particular, s 36(6) and, albeit to a lesser extent, s 45(1)(a)-(c) of the Act. The presence of these protections reinforces the correctness of a construction of s 36 which excludes the privilege against exposure to penalties.

45 It is apparent by these remarks that, and without having to decide the issue, I disagree with the interpretation given to s 36(6) by the applicant. In my view, the preferable interpretation is that the sub-section applies to all natural persons irrespective of whether the notice is issued to a natural or corporate entity.

46 Second, the applicant does not seek to avail itself of the privilege in respect of specific documents or information, or classes thereof. Rather the applicant seeks immunity from all production notwithstanding the fact that the notice has been issued pursuant to an investigation only with no charges having been laid. At the very least I consider the applicant’s claim to be premature.

The privilege is not available to the non-judicial investigative proceedings

47 Third, given that Graymarshall, as a corporation, cannot invoke the privilege against self-exposure to penalties in the context of judicial proceedings for the reasons discussed above, any basis for allowing Graymarshall to do so to avoid answering a notice lawfully served on it by a public authority pursuant to a statutory power exercised during the course of an investigation is even more remote.

48 In Daniels the Court stated (at [31], citations omitted):

49 The comments in Daniels were repeated in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 (at [24]):

24 Although the privilege against exposure to penalties had its origins in the rules of equity relating to discovery, when discovery and interrogatories were provided for under the rules made under the Judicature Act , the Court of Equity’s principle (that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown or a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty or forfeiture) was applied more generally (63). As was further pointed out in the joint reasons in Daniels Corporation (64), the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it (65). That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings (66). In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises.

50 However, in Valantine v Technical and Further Education Commission (2007) 166 IR 459; 97 ALD 447, it was held that the privilege could apply in quasi-judicial proceedings. In that case the appellant was employed as a head teacher until he was demoted for breaches of discipline. He sought review in the Government and Related Employees Tribunal (“the tribunal”). The tribunal directed him to file copies of all documents relating to the appeal, including witness statements. The appellant appealed against this order relying on the privilege against self-incrimination and the privilege against exposure to penalties, the latter of which was occasioned by a reduction of rank and concomitant loss of salary.

51 After reviewing the authorities on whether or not the privilege against exposure to penalties applies to quasi-judicial proceedings (see the decision at [54]-[66]), the Court of Appeal observed that (at [67]-[-69]):

[67] There is a difference of judicial opinion at the highest level in Australia, then, as to whether the privilege against exposure to penalties applies to a quasi-judicial body such as the Government and Related Employees Appeal Tribunal. The position can, I think, be summarised as follows. Latham CJ, Starke and Williams JJ in Kempley at 251, 253, 254 thought the privilege was inherently capable of applying to non-judicial proceedings. McTiernan J, at 253, took the opposite view. Subject to it being expressly or by necessary implication excluded by statute, Mason ACJ, Wilson and Dawson JJ in Pyneboard , at 341, appear to favour the application of the privilege in non-judicial proceedings. So, also, Gibbs CJ, Wilson and Dawson JJ in Morris at 403, 407-408. Murphy J in Pyneboard , at 346-347 and Morris , at 406-407, set his face against its application outside judicial proceedings. Brennan J in Pyneboard at 356-357, apparently regarded the privilege as inapplicable to an investigative process. In Morris at 411 he observed that a majority in Pyneboard and Sorby had taken the opposite view. Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels at 559 [31], appear to be against its recognition outside judicial proceedings, a view reiterated (Callinan and Heydon JJ replacing Gaudron J) in Rich at 142 [24].

[68] It would appear that seven members of the High Court favoured the view that the privilege against exposure to penalties applies to non-judicial proceedings. Three were definitely against that proposition and six were probably against it. However, the views expressed against the recognition of the privilege in non-judicial proceedings were all obiter and in Rich were expressed somewhat elliptically.
[69] Accordingly, just as there is no binding decision of the High Court that the privilege should be recognised outside judicial proceedings and is a substantive rule of law, there is no binding decision of that Court to the contrary.

52 The Court also analysed the term “judicial proceedings” and noted that its meaning remained similarly elusive (at [70]-[71]):

[70] Furthermore, it seems to me that there is some doubt as to what is meant by “judicial proceedings” in this context and that is yet to be clarified authoritatively. In Pyneboard at 351, Brennan J noted that none of the Commission’s powers or functions were judicial or quasi-judicial. They were wholly investigative. Was his Honour grouping quasi-judicial proceedings within “judicial proceedings” when he expressed the view that the privilege did not apply outside them? And his Honour in Sorby at 321 recognised that the privilege might be applied by administrative decision if the statute so provided:

…The measure of the testimonial obligation cannot be ascertained by the administrative decision of the person presiding over the non-judicial tribunal unless the statute, either expressly or impliedly, empowers him to do so;…

[71] His Honour appears to regard a non-judicial tribunal as an administrative one, thus excluding a quasi-judicial tribunal from that category. Alternatively, his Honour’s allowance that a non-judicial tribunal might be empowered by necessary implication to decide whether the privilege applies is more likely to arise in a quasi-judicial tribunal than a purely administrative one.

53 The Court held that both privileges were capable of application to the tribunal proceedings, a quasi-judicial forum in which sworn evidence was taken and where the employer had the evidentiary onus of proof.

54 The applicant relied on Valantine in support of his submission that the privilege applied to the provision of material and information pursuant to the notice. In my opinion, however, the decision is distinguishable. Whereas Valantine concerned an individual being compelled to disclose sworn evidence pursuant to a hearing, the present application concerns a corporation being compelled to disclose unsworn material and information during the course of an investigation. In these circumstances, even if the privilege were available to Graymarshall as a corporate entity, it did not apply at this preliminary administrative stage.

The Notice Was Not Misleading

55 It will be apparent from the discussion above that, in my view, nothing about the notice issued to Graymarshall was misleading insofar as it made express reference to the privilege against self incrimination but no reference to the privilege against exposure to penalties. The language in the notice was not inaccurate and, in any event, no evidence has been presented to the Court demonstrating that Graymarshall was misled.

56 Finally, and although in light of the findings above it is not necessary for me to pronounce upon the utility of the relief sought by the applicant, I note that except in circumstances involving fraud or bad faith, misleading conduct does not necessarily vitiate an administrative decision (Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at [76]-[79] and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53], but see Sharples v Minister for Local Government (2008) 166 LGERA 302 at [77] and [2010] NSWCA 36 at [75]).

Conclusion and Orders

57 It follows that the summons is dismissed with the applicant to pay the costs of the respondent.

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Citations

Graymarshall Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2010] NSWLEC 54

Cases Citing This Decision

0

Cases Cited

17

Statutory Material Cited

1

Grant v Downs [1976] HCA 63

Naismith v McGovern [1953] HCA 59

CITATION:	Graymarshall Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2010] NSWLEC 54
PARTIES:	APPLICANT Graymarshall Pty Ltd RESPONDENT Director-General of the Department of Environment, Climate Change and Water
FILE NUMBER(S):	40956 of 2009
CORAM:	Pepper J
KEY ISSUES:	PROSECUTION :- statutory notice served on company to provide documents and/or information pursuant to investigation for possible commission of statutory offence - deeming provision whereby liability of company imposed on directors and persons concerned with management of company subject to certain exceptions - whether privilege against exposure to penalties applied - held it does not EVIDENCE :- privilege against exposure to penalty - whether applies to company served with notice to provide documents and information - held it does not
LEGISLATION CITED:	Native Vegetation Act 2003 ss 3, 12, 36, 45
CASES CITED:	Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 Harrison v Melhem (2008) 72 NSWLR 380 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 Pyneboard Proprietary Limited v Trade Practices Commission; Dunlop Olympic Limited v Trade Practices Commission (1983) 152 CLR 328 R v Ronen (2004) 211 FLR 258 R v Ronen (2004) 62 NSWLR 707 Rich v Australian Securities and Investments Commission (2003) 183 FLR 361 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Sharples v Minister for Local Government (2008) 166 LGERA 302; [2010] NSWCA 36 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commissioner (2002) 213 CLR 543 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 123 ALR 503 Valantine v Technical and Further Education Commission (2007) 166 IR 459; 97 ALD 447
TEXTS CITED:	Pearce and Geddes, Statutory Interpretation in Australia (6th ed)
DATES OF HEARING:	12 April 2010
EX TEMPORE JUDGMENT DATE:	13 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson SOLICITORS W J Grace & Co Solicitors RESPONDENT Ms A Mitchelmore SOLICITORS Department of Environment, Climate Change and Water