M and S Investments (NSW) Pty Ltd v Carbone

[2022] NSWLEC 24

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

M & S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24

Hearing dates:

1 February 2022

Date of orders:

1 February 2022

Decision date:

01 February 2022

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraphs 25 to 28

Catchwords:

PRACTICE AND PROCEDURE — Notice of Motion to set aside notice to produce — whether appropriate to require production where no disclosure order made pursuant to s 247E of Protection of Environment Operations Act 1997 (NSW) — s 219(2) of Protection of the Environment Operations Act 1997 (NSW) — abuse of process or lack of prima facie case — whether documents sought in notice to produce required for purposes of hearing — relevance of documents sought — reasonableness of request — Notice of Motion to set aside notice to produce dismissed — Notice of Motion to vacate previous orders and require compliance with notice to produce granted

Legislation Cited:

Criminal Procedure Act1986 (NSW)

Protection of the Environment Operations Act 1997 (NSW)

Category:

Procedural rulings

Parties:

M & S Investments Pty Ltd (Prosecutor)
Angela Carbone (Defendant)

Representation:

Counsel:
R Tripodi (Prosecutor)
R Coffey (Defendant)

Solicitors:
Watson Stafford Zipkis (Prosecutor)
Swaab (Defendant)

File Number(s):

261163, 261164, 261165 and 261166 of 2021

Publication restriction:

No

EX TEMPORE Judgment

1. HER HONOUR: The Defendant has issued a Notice to Produce to the Prosecutor to produce the following documents:

1. Correspondence with potential witnesses, including any deed(s) or other agreement(s) proposed or entered into with any potential witnesses;

2. Affidavits or statements of witnesses proposed to be called;

3. Affidavits or statements of witnesses not proposed to be called;

4. Advanced notice of discrepancies between an affidavit or statement and the evidence proposed to be led;

5. Prior convictions of prosecution witnesses and other material relevant to credit; and

6. Material which could reasonably be seen to be capable of assisting the defence case.

2. The Notice to Produce was filed with the Court on 10 December 2021. The Notice to Produce was returnable on 17 December 2021. At a mention before the Acting Registrar on 15 December 2021 the party being the Defendant that issued the Notice to Produce requested, upon the Notice to Produce being called and no documents being produced, that the matter be listed before the List Judge on 16 December 2021, being the last day of term. That listing was made.

3. Subsequently, after the mention had been completed, the Acting Registrar on 16 December 2021 made orders;

1. Vacating the listing date of 16 December 2021; and

2. Listing the Notice to Produce for directions on 7 February 2022.

4. The Defendant and other Defendants in the proceedings have filed Notices of Motion dated 6 December 2021 seeking inter alia that the summons be struck out or permanently stayed. That application is listed for hearing on 7 February 2022 (the Strikeout Motion).

5. The Defendant contends that the documents sought in the Notice to Produce are required for the purposes of the hearing of the Strikeout Motion. The Defendant has filed an Amended Notice of Motion dated 27 January 2022 seeking orders relevant to this hearing:

2(a).   The following orders made by the Acting Assistant Registrar on 16 December 2021 on 16 December 2022 are vacated:

‘1. Notice to produce listed 17 December 2021 is vacated.

2. Matter listed for directions 7 February 2021 [sic]’.

3.   The Prosecutor be ordered to comply with the Notice to Produce issued on 10 December 2021 on behalf of Ms Angela Carbone within 48 hours.

4.    The Prosecutor be ordered to comply with its ongoing Duty of Disclosure to Ms Angela Carbone within 48 hours.

5.    Costs.

6. The Prosecutor has filed a competing Notice of Motion filed on 27 January 2022 seeking orders:

1.   Set aside the Fourth Defendant’s Notice to Produce filed and issued on 10 December 2021.

2.    Dismiss the Fourth Defendant’s Notice of Motion filed 24 January 2022.

3.    Costs.

7. These two Notices of Motion come before me today for determination. It is appropriate that I deal with the Prosecutor’s Notice of Motion first and then, if necessary, the Defendant’s Amended Notice of Motion.

The Prosecutor’s Notice of Motion

8. The Prosecutor seeks to set aside the Notice to Produce on grounds that it is an abuse of process as:

1. It is seeking, in effect, disclosure required by s 247E of the Criminal Procedure Act1986 (NSW) when an application for such disclosure was made by the Defendant before Moore J on 5 November 2021 and his Honour declined to make such order until after the hearing of the Strikeout Motion; and

2. The documents sought can have no relevance to the Strikeout Motion.

9. Section 247E relates to a complete and continuing obligation of disclosure. Such an order is discretionary. Moore J declined to require the disclosure as it would be unnecessary in the event of the summons being struck out. The exercise of that discretion related to the circumstances of a s 247E disclosure, which would relate to all aspects of the prosecution case. Such a discretionary determination relating to s 247E does not operate to preclude production of material if required for a purpose necessary to or relating to interlocutory aspects of the proceedings.

10. The question is not whether or not the Defendant is seeking disclosure pursuant to s 247E, as no such application is made. The real question is whether it is appropriate now to require the Prosecutor to produce material that would otherwise require production if and when a s 247E disclosure order is made.

11. In the circumstances, notwithstanding the exercise of the discretion of his Honour not to make a s 247E disclosure, I consider that it is not a barrier to a Defendant seeking production of material in the absence of a s 247E disclosure order. Therefore, it is not an abuse of process merely on the basis that Moore J had declined to make the required 247E direction. It is not, accordingly, an abuse of process which would warrant the Notice to Produce being struck out.

12. The second question was the primary focus of the submissions made by the Prosecutor, which relates to the relevance of the documents sought and the reasonableness of the request at this stage of the proceedings. The grounds upon which the Defendant contends that the document should be produced for the Strikeout Motion are as it relates to the Strikeout Motion and, in particular, the second ground of its Strikeout Motion which raises for consideration the operation of s 219(2) of the Protection of the Environment Operations Act 1997 (NSW), which provides:

(2)   The Land and Environment Court is not to grant leave unless satisfied that--

(a)   the EPA has decided not to take any relevant action (as defined in subsection (3)) in respect of the act or omission constituting the alleged offence or has not made a decision on whether to take such action within 90 days after the person or authority requested the EPA to institute the proceedings, and

(b)    the EPA has been notified of the proceedings, and

(c)    the proceedings are not an abuse of the process of the Court, and

(d)    the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence.

13. The documents sought are said to be necessary insofar as they relate to matters asserting either an abuse of process or the lack of a prima facie case. The Prosecutor contends that the documents either cannot be relevant or admissible with respect to the issue of an abuse of process. The Defendant contends that what material was available to the Prosecutor and not provided to the Land and Environment Court and/or arrangements it was seeking to put in place to obtain evidence is so relevant.

14. As noted above, when a s 247E disclosure order has not been made a Defendant is entitled to seek, by any reasonable alternative means, the production of documents. Such a right is consistent with the underlying object of the prosecutorial duty of disclosure to permit a Defendant to obtain a fair trial. Such an objective must extent to interlocutory hearings, such as the Strikeout Motion.

15. In this case, the Notice to Produce, whilst permissible, is drafted in a manner that could be viewed as relating to matters beyond the scope of the Strikeout Motion. The Defendant assures me that the intended scope is limited to the Strikeout Motion. In the circumstances, after discussions as to the wording in the Notice to Produce with the Defendant, the Defendant accepted that a modified form of wording that constrained the scope of the Notice to Produce would satisfy its requirements.

16. It was proposed that the Defendant not press paras 3 through 6 of the Notice to Produce and that it would be prepared to amend paras 1 and 2 of the Notice to Produce to contain the following words:

1. Correspondence with persons with whom the Prosecutor communicated for the purposes of eliciting or considered eliciting evidence for the proceedings; and

2. Affidavits or statements of persons in connection with the claims the subject of these proceedings in the possession of the Prosecutor as at 11 September 2021.

17. The Prosecutor maintained that, notwithstanding such an amendment, it would press its application to strikeout the Notice to Produce as:

1. The issues it had raised in relation to the admissibility of the material at the hearing; and

2. That the Defendant has already produced the documents provided to Moore J at the application for issue of the summons and, therefore, there were no further documents to produce.

18. As to the existence of the documents, the fact that there may not be documents to produce does not speak to striking out the Notice to Produce. The Prosecutor merely answers it with, “No documents to produce”. As to the admissibility at the hearing, that is a matter for the judge hearing the Notice of Motion to determine. To the extent that the documents have the potential to provide material relevant to the question before the Court at the hearing, they are able to be requested.

19. Having regard to the modified form of words constraining the scope of the Notice to Produce, I do not see any reasonable grounds in the circumstances of this case that would warrant the striking out of the Notice to Produce as being either an abuse of process or on any other ground raised by the Prosecutor.

20. Therefore, on condition of the modified wording to the Notice to Produce, I propose to dismiss the Notice of Motion filed by the Prosecutor.

21. As to the Defendant’s Amended Notice of Motion, the Defendant noted during the course of the hearing that it no longer pressed order 4 sought in the Amended Notice of Motion. The first order relevantly then arises in relation to the order made by the Acting Registrar to vacate a return date of a Notice to Produce before the list judge so that the issues relating to the Notice to Produce could be argued before the hearing on 7 February 2022.

22. Having regard to the evidence as to what was related to the Acting Registrar during the course of the directions hearing and the fact that there is no reasons available to me as to why the Acting Registrar made her decision, and there was no application before the Registrar to vary or order the decisions made and no communication given to the parties to enable them to address her in the event that she was so minded to vary the directions that she had made, I consider it appropriate to vacate the orders made by the Acting Registrar.

23. In reviewing the decision of the Acting Registrar, I consider in particular that to undertake the steps that she took without giving the parties the opportunity to address her was to deny the parties procedural fairness. Accordingly, I am prepared to make the order set out in para 2(a) of the Defendant’s Amended Notice of Motion.

24. Therefore, the Notice to Produce remains returnable on the date fixed. In that regard, that date having passed, it is appropriate that the Prosecutor be given a period of time with which to now comply with the Notice to Produce in its amended form that I have determined is appropriate to issue in the circumstances of this case. The Defendant has sought 48 hours in order 3 of its Amended Notice of Motion. I consider that to be reasonable in the circumstances of the case.

Orders

25. Accordingly, in relation to the Prosecutor’s Notice of Motion, subject to the amendment to the Notice to Produce as referred to in order (2) below, the Notice of Motion filed by the Prosecutor on 27 January 2022 is dismissed.

26. The Notice of Motion filed by the Defendant as amended on 27 January 2022, the Court orders:

1. That the orders made by the Acting Assistant Registrar on 16 December 2021 are vacated.

2. The Prosecutor is ordered to comply with paras 1 and 2 of the Notice to Produce issued on 10 December 2021 as amended in the following terms:

1. Correspondence with persons with whom the Prosecutor communicated for the purposes of eliciting or considered eliciting evidence for the proceedings; and

2. Affidavits or statements of persons in connection with the claims the subject of these proceedings in possession of the Prosecutor as at 11 September 2021 with 48 hours of the date of this order.

27. The costs of both Notices of Motion are reserved.

28. Those are my orders and the reasons for my decision.

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Amendments

29 March 2022 - At [22] first sentence - typographical error - replace 'Commissioner' with 'Registrar'.

Decision last updated: 29 March 2022