Port Macquarie-Hastings Council v Mansfield

[2018] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation:	Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107
Hearing dates:	6 April 2018, 2 May 2018, 31 May 2018
Date of orders:	16 July 2018
Decision date:	16 July 2018
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	See paragraph [328]
Catchwords:	SUBPOENA: Application to set aside subpoenas to two companies on several grounds – whether they inappropriately rely on information obtained by the tainted use of a coercive investigation power – legitimate forensic purpose – abuse of process – ulterior purpose – other subsidiary objections.
Legislation Cited:	Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2014 Evidence Act 1995 Interpretation Act 1987 Land Acquisition (Just Terms Compensation) Amendment Act 2016 Listening Devices Act 1984 Local Government Act 1993 Port Macquarie-Hastings Local Environmental Plan 2011 Roads Act 1993 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) [2017] NSWLEC 183 Alister v The Queen (1984) 154 CLR 404 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Attorney General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Drs (No 3) [2018] FCCA 34 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Bunning v Cross (1978) 141 CLR 54 Carroll v Attorney – General (NSW) (1993) 70 A Crim R 162 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171 Crane v Insurance Australia Limited trading as NRMA Insurance [2014] NSWDC 218 Desane Properties Pty Ltd v State of New South Wales [2018] NSWSC 553 Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204 Ku-ring-gai Council v Chia [2018] NSWLEC 40 Lowery v Insurance Australia Ltd [2015] NSWCA 303 Maddison v Goldrick [1976] 1 NSWLR 651 National Employers’ Mutual General Association Ltd v Waind and Hill; Waind and Hill v National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 Ridgeway v the Queen (1995) 184 CLR 19 R v Ali Tastan (1994) 75 A Crim R 498 R v Saleam (1989) 16 NSWLR 14 R v Saleam [1999] NSWCCA 86 R v Seller [2013] NSWCCA 42 Rogers v The Queen (1994) 181 CLR 251 Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 Thompson v Randwick Municipal Council (1950) 81 CLR 87 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 Young v King (No 3) [2012] NSWLEC 42 Zhang v Woodgate and Lane Cove Council (2015) 208 LGERA 1; [2015] NSWLEC 10
Texts Cited:	Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, 2013, and 6th ed, 2017, Lawbook Co.)
Category:	Procedural and other rulings
Parties:	Port Macquarie-Hastings Council (Prosecutor) Paul Scott Mansfield (Defendant)
Representation:	Counsel: Mr R O’Gorman-Hughes (Prosecutor) Mr C Ireland (Defendant)   Solicitors: Lindsay Taylor Lawyers (Prosecutor) Colin Biggers & Paisley(Defendant)
File Number(s):	2017/2870062017/287056

Judgment

A: Introduction

1. The Defendant in each of these two Class 5 prosecutions, Paul Scott Mansfield, has moved to have the Court set aside subpoenas issued in each matter, to each of two “Third Parties”, namely Eagle Nest Park Pty Ltd (“ENP”) and King & Campbell Pty Ltd (“K&C”).

2. The two prosecutions have been travelling together, and, prior to their listing to deal with the set-aside motions, they had been the subject of several directions hearings before Judges and the Registrar.

3. Case management has continued while the set-aside motions have been under consideration, but no pleas have yet been entered to the charges.

4. Pending determination of these NsOM, the Registrar has stood over both (1) the return of the ENP subpoena, and (2) the question of further access to documents already produced by K&C (detailed in Exhibit D2).

5. Both proceedings concern allegedly unlawful works on a site at 743 Ocean Drive, Grants Beach (between Camden Haven and Port Macquarie). The Defendant refers to the location as “Bonny Hills”.

6. Relevantly, the charge period is “between 1 November 2013 and 30 November 2015”.

7. I shall set out the charges and particulars, and the terms of the subpoenas, in the next two sections of this judgment, “B” and “C”, respectively (commencing [23] and [28] below, respectively).

8. In Section “D” (commencing at [35]) I will explain the complexities which arose on the hearing of the motions, before proceeding to summarize the arguments and the evidence deployed in this hard-fought contest.

9. Because of the way the Defendant argued his position, lengthy extracts from the competing submissions, and from the many cases relied upon, will be required.

10. Rule 33.4 of the Uniform Civil Procedure Rules (“UCPR”) 2005 applies to these summary criminal proceedings, pursuant to Pt 75 r 3(1) of the Supreme Court Rules 1970, and provides as follows (emphasis mine):

“(1)   The Court may, on application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2)   An application under subrule (1) must be made on notice to the issuing party.

(3)   The Court may order that the Applicant give notice of the application to any other party or to any other person having a sufficient interest.”

11. That rule undoubtedly permits a party to apply to set aside a subpoena issued by another party to a non-party. A defendant clearly has a “sufficient interest” when the material sought by the Prosecutor is to be used against the Defendant in criminal proceedings such as these. The Defendant clearly has standing: see Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171, at [43] to [48].

12. Even though the principles to apply are basically the same as in civil matters, particular issues of fairness arise on such set-aside applications, when the proceedings are criminal in nature.

13. Allowing the issuing of a subpoena, and the production of material in response to it, does not ensure either the granting of access to the material, nor its admission into evidence.

14. Section 138 of the Evidence Act 1995 regulates the admission or exclusion, at trial, of evidence obtained “improperly or in contravention of an Australian law”, or “in consequence of an impropriety or of [such] a contravention ...”.

15. Here the Court is asked to adjudicate on the validity of the subpoenas issued, and not issues of access, or admissibility. As noted during this hearing (T31.05.18 p4. LL47-49 and p5, LL2-3):

... there will indeed need to be an inquiry into the admissibility of evidence at the main hearing. ... These aren't the proceedings proper, it's a challenge to a subpoena ...

16. The Defendant attacked the subpoenas as (a) “too broad”, (b) “seeking discovery”, (c) having no apparent relevance, and (d) lacking a legitimate forensic purpose, but also (e) for their inappropriate reliance on information obtained by use of coercive investigative powers in the EPA Act, such that they amount to an “abuse of process”.

17. On 5 February 2016, the Defendant’s then solicitor (Michael Mantei) put the Prosecutor on notice (annexure ‘D’ to an affidavit by solicitor Todd Neal, sworn 5 March 2018) that the Defendant would object to the admissibility of any evidence unlawfully obtained as a result of a Council notice (see s 138 of the Evidence Act).

18. In this respect, the Defendant’s solicitor said he would rely on the Chief Judge’s decision in Zhang v Woodgate and Lane Cove Council (“Zhang”) (2015) 208 LGERA 1; [2015] NSWLEC 10, to which I will return ([94]).

19. Zhang, and many of the leading cases to which I will refer later, particularly in Section F of this judgment, each refer to one or more of the different questions that can arise – issuing a subpoena, production of materials to the Court, the granting of access to those materials, and their tendering at trial, admissibility and probative value – and often such issues overlap.

20. Those cases need to be examined closely, as they will be, in order to identify, and state clearly, the correct question(s) to be addressed, and the principles to be applied in the present case.

21. The Defendant Mansfield’s involvement with the two subpoena’d companies is as follows:

• He is the sole director, secretary and major shareholder of ENP, which Council alleges paid for development works carried out during the charge period, and ENP and Mansfield have engaged the same solicitor.

• Mansfield and his wife apparently engaged K&C to prepare a Statement of Environmental Effects (“SEE”) to accompany a development application (“DA”) lodged with Council on 7 September 2016.

22. I turn now to the charges, and then to the subpoenas.

B: The Charges

23. For completeness, I now set out the charges, which were filed on 21 September 2017. (Some emphasis has been added).

24. In matter number 2017/287006, Mansfield is charged with an:

“... offence against s125(1) of the Environmental Planning and Assessment Act 1979 [(“EPA Act”)] that he did a matter forbidden to be done by s76B(a) of the said Act, namely that, between 1 November 2013 and 30 November 2015, he did, carry out development (not being exempt development) (Development) on land (Land) which development an environmental planning instrument (EPI) provided (Provision) was prohibited development.

Pursuant to s127(5B) of the [EPA Act], evidence of the offence first came to the attention of a Council Investigation Officer C Henderson on 23 September 2015.

Particulars:

Land:   Lot 101 DP 754444 Ocean Drive, Grants Beach

Development:   Development for innominate purpose point 4 Land Use Table:

a)   Earthworks including excavation and filling of the site and retaining walls;

b)   The construction of a facility that appears to be a recreation hall, with toilets and showers and an internal kitchen;

c)   A barbecue and paved area adjoining the recreation hall;

d)   A teenagers retreat built in a shipping container;

e)   A laundry built in a shipping container;

f)   A covered walkway that leads from the recreation hall to a bunkhouse;

g)   A bunkhouse that includes 7 units, each with ensuites;

h)   Concrete piers and plumbing next to the bunkhouse, which appears to be ready to receive cabins for installation;

i)   A concrete slab which is the future site for a shed to be built;

j)   A large carpark area;

k)   A shipping container used for storage;

I)   A shipping container which houses electricity generators

m)   Two large water tanks;

n)   Two septic tanks and absorption trench;

EPI:   Port Macquarie-Hastings Local Environmental Plan 2011

Provision:   Clause 2.3(1)(c) and Land use table”

25. In matter number 2017/287056, he is charged with an:

“... offence against s125(1) of the [EPA Act] that he did a matter forbidden to be done by s76A(1) of the said Act, namely that, between 1 November 2013 and 30 November 2015, he did, without a development consent having been obtained for same, carry out development (not being exempt development) (Development) on land (Land) which development an environmental planning instrument (EPI) provided (Provision) may not be carried out except with development consent.

Pursuant to s127(5B) of the [EPA Act], evidence of the offence first came to the attention of a Council Investigation Officer C Henderson on 23 September 2015.”

26. Save that the development is stated to be for “the purpose of dwelling houses”, rather than the “innominate [prohibited] purpose” particularised in 2017/287006, the supporting particulars in 2017/287056 are identical to those in 2017/287006, including the development items (a) to (n).

27. The Defendant claims there is conflict or inconsistency between the two charges (T06.04.18 p2, L6, and the Defendant’s reply subs par 1), but that is not the Court’s present concern.

C: The Terms of the Subpoenas

28. The subject subpoenas were issued on 7 February 2018.

29. ENP was directed to produce (some emphasis added):

1.   all Documents relating to the Development of land at 743 Ocean Drive, Grants Beach (Lot 101 in Deposited Plan 75444) (Land) for work carried out in the period 1 November 2013 to 30 November 2015 including, but not limited to:

a.   invoices and quotations from suppliers, contractors and consultants,

b.   correspondence (including emails and letters) between Eagle Nest Park Pty Ltd ACN 141 232 144 and any supplier, contractor and consultant;

c.   file notes, emails, records of any director, shareholder, employee, agent or officer of Eagle Nest Park Pty Ltd ACN 141 232 144 relating to or recording the Development;

d.   business plans and reports in relation to the use of the Land for an eco-tourism facility;

e.   loan applications to any bank, mortgage broker or financial institution in relation to funding for the works or the proposed eco-tourism facility; and

f.   bank statements showing payments made to suppliers, contractors and consultants involved in the Development.

2.   all Documents that record any correspondence, communication or instruction provided to King & Campbell Pty Ltd ACN 001 105 442 or any consultant or person involved in preparing or lodging an application to the Port Macquarie - Hastings Council seeking development consent for the Development or the continued use of the Development between the period (sic) 1 December 2015 and 30 June 2017.

30. “Documents” and “Development” were defined (in par 3) as follows:

'Documents' has the meaning provided in the Evidence Act 1995 (NSW) and includes originals and/or copies and/or drafts of letters, facsimiles, memoranda, reports, notes and file notes, diary notes, accounts, quotations, business cards, policy and procedure manuals and any other written material (including documents stored in computerised form or electronic form) in your possession, custody, or control.

'Development' means the development on the Land, including but not limited to:

a.   Earthworks including excavation and filling of the site and retaining walls;

b.   The construction of a facility that appears to be a recreation hall, with toilets and showers and an internal kitchen;

c.   A barbecue and paved area adjoining the recreation hall;

d.   A teenagers retreat built in a shipping container;

e.   A laundry built in a shipping container;

f.   A covered walkway that leads from the recreation hall to a bunkhouse;

g.   A bunkhouse that includes 7 units, each with ensuites;

h.   Concrete piers and plumbing next to the bunkhouse, which appears to be ready to receive cabins for installation;

i.   A concrete slab which is the future site for a shed to be built;

j.   A large carpark area;

k.   A shipping container used for storage;

I.   A shipping container which houses electricity generators;

m.   Two large water tanks; and

n.   Two septic tanks and absorption trench.

31. K&C was directed to produce (some emphasis added):

1.   all Documents created between 1 December 2015 and 30 June 2017 relating to the Development or the seeking or granting of development consent for the Development of land at 743 Ocean Drive, Grants Beach (Lot 101 in Deposited Plan 75444) (Land) that took place between 1 November 2013 and 30 November 2015 including, but not limited to:

a.   invoices and quotations issued to Paul Scott Mansfield, Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust

b.   correspondence (including emails and letters) between King & Campbell Pty Ltd ACN 001 105 442 and:

i.   Paul Scott Mansfield; or

ii.   any director, officer, employee or agent of either Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust ;or

iii.   any supplier, contractor and consultant or agents of the above;

c.   file notes of any meetings between any director, shareholder, employee, agent or officer of King & Campbell Pty Ltd ACN 001 105 442, Paul Scott Mansfield and any director, shareholder, employee, agent or officer of Eagle Nest Park Pty Ltd ACN 141 232 144 or the Mansfield Family Trust;

d.   plans and reports in relation to the use of the Land for a dwelling or an eco-tourism facility;

e.   bank statements of accounts of King & Campbell Pty Ltd ACN 001 105 442 showing:

i.   payments made to King & Campbell Pty Ltd ACN 001 105 442 by Paul Scott Mansfield or Eagle Nest Park Pty Ltd ACN 141 232 144; and

ii.   any payments made to suppliers, contractors and consultants involved in the Development by King & Campbell Pty Ltd ACN 001 105 442 on behalf of Paul Scott Mansfield or Eagle Nest Park Pty Ltd ACN 141 232 144

32. That K&C subpoena included (in its par 2) the same definitions of “Document” (sic) and “Development” as the ENP subpoena.

33. It is, however, to be noted that the correct “DP” number for the subject land is “754444”, and not “75444”, an error which occurs frequently in the material before the Court, including in the subject subpoenas.

34. K&C’s response to the now-challenged subpoena (Exhibit D2) says that K&C was engaged by the Defendant in January 2016 to seek consent for an eco-tourist facility on the subject land. K&C provided on a USB all relevant documentation, from the period from January 2016 to 30 June 2017, and added, inter alia, these comments:

•   All [K&C] correspondence has been made with Paul Mansfield with respect to the subject site and project. No correspondence has been made with employees of Paul Mansfield or [ENP];

...

•   The email correspondence has also been separated into sent and received folders to ensure all correspondence is provided.

D: The Notices of Motion come on for hearing

35. On 5 March 2018, following correspondence between the solicitors for the parties, Mansfield’s solicitors filed two Notices of Motion (“NOM”), in each matter.

36. The NsOM seek:

1. that the subpoena to K&C, and paragraphs 1 and 2 of the subpoena to ENP (i.e. the effective parts of that subpoena), in each matter, be set aside;

2. that the Prosecutor pay the Defendant's costs of the NsOM; and

3. that the Court make any other orders it “thinks fit”.

Day One – 6 April 2018

37. All four NsOM were listed before me, as List Judge, on 6 April 2018, and have been argued together, by Mr C Ireland, counsel for the Defendant, and Mr R O’Gorman-Hughes, counsel for the Prosecutor.

38. The Court had some difficulty with the hearing of the NsOM on that first day, largely because, for some reason, no directions had been given, prior to 6 April 2018, by either the List Judge or the Registrar, requiring that detailed grounds of challenge be particularised, and perhaps written submissions provided, in advance of the hearing.

The Defendant on Day One

39. Mr Ireland, being ready and anxious to proceed, relied upon:

1. the affidavit of the most relevant Council officer, its compliance co-ordinator Craig Henderson, which was dated 21 September 2017 and forms part of the Prosecution brief, together with two volumes of documents which Henderson annexed (as Exhibit CH-1 to his affidavit), all of which prosecution material was tendered by Mr Ireland, and became Exhibit D1 before me;

2. a “Defendant’s bundle” of documents, which included, in the nature of a Court Book, the summonses and orders (pp1-11), and subpoenas (pp12 to 27); but also

1. an affidavit, with annexures, from the Defendant’s solicitor, Todd Neal (pp28-45), dated 5 March 2018, which Mr Ireland read on the NsOM; and

2. a letter from K&C to this Court (pp46-47), dated 19 February 2018 (which became Exhibit D2), enclosing documents in response to subpoena(s) directed to it, and providing some explanatory comments (see [34] above);

3. his comprehensive primary written submissions, dated and filed that day; and

4. a large bundle of authorities

40. He then made extensive oral submissions.

The Prosecutor on Day One

41. Mr O’Gorman-Hughes, appearing for the prosecuting Council, relied, at the hearing on Day One, on an affidavit from his instructing solicitor, Carlo Zoppo, dated 4 April 2018.

42. Mr O’Gorman-Hughes said, in opening, that Mr Henderson had visited the subject site in November 2015, in response to a community complaint, and had been shown around by a Mr Les Glass, who informed him that he was the Defendant’s brother-in-law, and that the Defendant owned that land, and had built on it a “holiday retreat” for his family (see T06.04.18 p7, LL7-30).

43. Mr O’Gorman-Hughes acknowledged that that evidence may be excluded at trial as hearsay, but he said (LL28-30) that “it can still be used to form a legitimate forensic purpose to guide the issue or attempt to gain further evidence by the prosecutor”.

44. Mr Zoppo deposed to his further investigations, including the Defendant’s response to a notice given to him by Council under s 119J of the EPA Act (to which I will return).

45. That response included production of a number of invoices and other documents.

46. In the context of the role played by ENP, Mr O’Gorman-Hughes said (T06.04.18 p8, LL5 to 9, and 38 to 46):

... the fact that there are invoices issued to a company which the defendant is a sole director and majority shareholder of, relating to the development of the land makes it on the cards that that company will have documents that will relate to the unauthorised development that will materially assist the prosecutor’s case.

...

... so the three things, the admissions from Mr Glass, the defendant intended to use the development for a particular purpose and that the defendant was the owner, the fact that the director was a sole director of Eagle Nest Park Pty Limited and the fact that the defendant according to these documents instructed contractors to issue invoices to Eagle Nest Park and that in fact there are invoices and other documents that had been for work means that it is on the cards Eagle Nest Park has documents that are relevant and will materially assist the prosecution case.

47. Mr O’Gorman-Hughes also submitted that the Prosecutor relied upon K&C’s role in the 2016-17 DA for an eco-tourist facility, especially in preparing the SEE, to shed some light on the Defendant’s intentions in seeking that approval some months after Council had inspected “unauthorised [prior] development” on the site. He said (T06.04.18 p9, LL23-24, 33-36, and 44-47):

... they must have been told something by the defendant who engaged them about that development.

...

... they weren’t engaged until January 2016 so someone must have told them it’s on the cards that the defendant said to these consultants, these are the works I undertook, can you try and get consent for me.

...

... We think there will be amongst the documents that the consultant planners have evidence from the defendant that he told them what his intent was and that’s clearly relevant to whether the defendant carried out the work or not.

48. However, Mr O’Gorman-Hughes did not make any substantive oral submissions on the challenge, on that first day, beyond what he said in opening.

49. He took the position (T06.04.18 p13, L48 to p19, L20):

1. that the NsOM set out no grounds for challenge, and he had come to Court prepared to respond to only such challenges to the subpoenas as he had decanted from material in Neal’s affidavit (I note in this respect pars 13, 14, 15 and 22, and annexures ‘A’ and ‘E’, which included legal arguments put to the Prosecutor in correspondence); and

2. that Mr Ireland’s written and oral submissions on that first day had gone well beyond assertions in that material, and the Prosecutor was entitled to procedural fairness in order to meet them.

50. As Mr O’Gorman-Hughes said (T06.04.18 p18, LL35-38):

So in my submissions I can deal with legitimate forensic purpose but abuse of process is something that you would have thought we’d be put on notice of rather than having it raised now.

51. Mr Ireland countered (Tp19, LL24-32):

... to say a subpoena is an abuse of process that’s also customarily another way of saying it lacks a legitimate forensic purpose or that it seeks documents of no apparent relevance. So it’s really part and parcel of arguments in this territory on which the prosecutor has the onus of showing a legitimate forensic purpose to deal with issued of abuse of process. I accept that the way in which I put the abuse of process argument here relates to the invalidity of the 119J notice but there was clearly in my submission notice given of that but if the prosecutor needs further time to respond we couldn’t reasonably object to that and we don’t.

The Outcome and The Aftermath of Day One

52. In the result, I allowed Mr Ireland to complete all his oral submissions in chief, on that first day.

53. I then granted Mr O’Gorman-Hughes an adjournment of the hearing, and gave directions, to enable his preparation of responsive submissions.

54. Mr Ireland filed supplementary written submissions in chief on 9 April 2018.

55. Mr O’Gorman-Hughes filed his written submissions on 26 April 2018.

56. Mr Ireland filed submissions in reply on 30 April 2018.

57. The Council also procured two further affidavits from Henderson, one dated 26 April 2018, but a second one coming to the attention of both the Defendant and the Court only on 1 May 2018.

Day Two – 2 May 2018

58. The hearing resumed on 2 May 2018.

59. Mr Ireland put the Prosecutor and the Court on notice that, if both the new Henderson affidavits were to be relied upon by the Prosecutor on the NsOM, he would require Henderson for cross-examination, and would need to subpoena from Council various items of background material.

60. As Henderson was already committed in another court that day, the hearing of these NsOM had to be adjourned again.

61. In respect of the material on which the witness relied, the Prosecutor acknowledged its duty of disclosure (T02.05.18 p8, LL44-46), and counsel discussed a draft, prepared by Mr Ireland, of a subpoena addressed to Council.

62. Eventually, counsel agreed to negotiate informal production of a suite of documents which the Defendant would wish to be produced and examined before Mr Henderson gave his oral evidence (T02.05.18 pp7-10).

63. The Defendant also made an oral application (T02.05.18 p5, L49 to p6, LL2 and 47-48), pursuant to s 257F of the Criminal Procedure Act 1986, for “costs thrown away” as a consequence of the adjournment.

64. The Defendant’s NsOM – and his oral costs application – were adjourned to 31 May 2018 (T02.05.18 p7, L16).

The Aftermath of Day Two

65. On 7 May 2018, the Court issued a subpoena to Council, at the request of the Defendant, and the solicitors apparently corresponded about it (Exhibit P1, item 1.2).

Day Three – 31 May 2018

66. The hearing resumed on 31 May 2018.

67. Mr O’Gorman-Hughes filed an amended outline of his submissions, provided his own separate bundle of authorities, and also tendered a letter from Council’s solicitors to the Defendant’s solicitor, dated 18 May 2018, attaching, “by way of informal production”, in response to the subpoena of 7 May 2018, some documents to which Mr Henderson had referred in preparing his evidence (Exhibit P1).

68. Mr Henderson then gave some oral evidence, and was cross-examined for some time.

69. At the conclusion of Mr Henderson’s evidence (T31.05.18 p28), Mr Ireland filed in Court a NOM seeking the costs order he had earlier sought orally, in respect of the aborted hearing on 2 May 2018. That NOM was supported by an affidavit from solicitor Katherine Edwards dated 31 May 2018, which included details of costs claimed in the sum of $8,439.20, plus counsel’s fees of $3,987.50.

70. The Court then heard Mr O’Gorman-Hughes’s oral submissions on the NsOM, and a reply from Mr Ireland, before reserving this decision.

Since Day Three

71. The Council was ordered to advise the Court on 8 June 2018 of its intentions regarding the Defendant’s costs NOM. I subsequently granted, in chambers, an extension of that time limit to 15 June 2018.

72. On 15 June 2018, the solicitors for the Defendant notified the Registrar that its claim for its costs of the adjournment on 2 May 2018 had been resolved.

73. No details of that agreed resolution have been provided.

74. Accordingly, I will give no consideration in this judgment to the Defendant’s NOM dated 31 May 2018 regarding costs.

E: The Structure of What Follows

75. I will now proceed as follows:

• In Section F, I will set out the Defendant’s arguments in chief, largely developed on Day One.

• In Section G, I will record the Council’s evidence, much of it filed in response, after Day One, to the Defendant’s arguments in chief, but some of it tendered, in fact, on Day One, by the Defendant, and some also provided by Henderson under cross-examination on Day Three.

• In Section H, I will set out the Prosecutor’s arguments in defence of its subpoenas.

• In Section I, I will summarize, so far as then remains necessary, Mr Ireland’s submissions in reply.

76. I will then, in Section J, consider the parties’ competing cases, before reaching my conclusion and orders (Section K).

F: The Defendant’s Arguments in Chief

77. Mr Ireland has favoured the Court with three sets of written submissions in support of the Defendant’s position – primary submissions filed in Court on 6 April 2018, supplementary submissions filed on 9 April 2018, and submissions in reply filed on 30 April 2018.

78. He also submitted two bundles of authorities, one during his opening address (T06.04.18 p10, L11), and another during his reply (T31.05.18 p54, L2).

The Defendant’s principal arguments

79. Fundamentally, the Defendant argues that the Prosecutor, by issuing the subpoenas in question, is “fishing”, in order to “find a case” against the Defendant, and doing so on the basis of third party documents, obtained in circumstances in which they should not be used for the purposes of criminal proceedings.

The s 119J notice argument

80. In this respect, Mr Ireland submitted (T06.04.18 p10, LL21 to 26 and 37 to 47 – emphasis added):

In terms of the way in which the existence of [ENP] and its potential involvement in the carrying out of the development came to light, that was by or through the issue of a s 119J notice by the prosecutor, that we say, or the defendant says, was issued for the impermissible purpose of criminal prosecution, that not being a purpose for which s 119J may be issued under the [EPA] Act.

...

... the prosecutor has the onus of persuading your Honour that there is this legitimate forensic purpose.

What the prosecutor says ... is that the forensic purpose of the [ENP] subpoena is derived from admissions made by the defendant in response to a notice issued by council pursuant to 119J ... The admissions and records produced by the defendant in response to the notice alerted council to the fact that [ENP] was involved with development.

(See also T06.04.18 p16, LL39-41.)

81. Mr Ireland added (Tp11, L7):

The same point arises in relation to the [K&C] subpoena ...

82. As Mr Ireland later put it (Tp18, LL8-15, referring to par 17 of his submissions):

... the fundamental question is can a prosecutor use illegal conduct, in other words the issue of a 119J notice that’s not supported by the required purpose or the purpose required by s 119J and surrounding sections of the [EPA Act] as it was at the relevant time, in order to then issue subpoenas to trawl up documents the existence of which it has only been alerted to from parties the existence and potential involvement of which it has only been alerted to by this invalid and ultra vires conduct.

83. Section 119J (now s 9.22) was placed in the EPA Act by amendments passed by Parliament in late 2014. They received assent on 19 November 2014, and commenced on 31 July 2015, and s 119J provides:

Requirement to provide information and records

(1)   An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.

(2)   The notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(3)   The notice may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(4)   The person to whom any record is furnished under this section may take copies of it.

(5)   If any record required to be furnished is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

(6)   An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.

84. The Defendant submits that the s 119J notices in this case were ultra vires, because (T06.04.18 p11, LL22-23) “at least a substantial purpose of the issue of this notice was to engage in criminal prosecution ...”. Mr Ireland submitted (Tp11, LL26-30) that he does not “have to show that that sole purpose is this impermissible purpose”, but s 119J requires that “the purpose for the issue of the notice is the exercise of the function of council under the [EPA Act], and that’s, in my submission, the sole purpose or at the very least the dominant purpose ...”.

85. Mr Ireland continued (Tp11, LL33-41 and 46-49):

In my submission, the only reasonable inference available on the evidence is that either the sole or the dominant purpose for the issue of these 119J notices was not the exercise of the council function under the [EPA Act], but impermissibly to engage in criminal prosecution of my client, which is an impermissible purpose. And I say that even if your Honour were to conclude that that was only one of a number of purposes and that the exercise involved mixed purposes, on the evidence your Honour would conclude that the whole exercise has been tainted because either the sole, or perhaps the dominant purpose of the issue of the 119J was tainted by this impermissible purpose. ... [W]here an improper purpose is a substantial purpose, including in the sense that power would not have been exercised if it was not for that impermissible purpose then the whole exercise of power will be tainted by the improper purpose.

86. The notice issued to the Defendant on 15 December 2015 (Neal’s Annexure ‘C’, and Exhibit D1 tabs 9 and 11) was very detailed in its specification of the documents it sought, and allowed six weeks for a response. The Defendant eventually responded on “9 May 2016” (Henderson 21 September 2017 par 25) in great detail (some 240 folios – see [199] below).

87. The Prosecutor was asked on 1 February 2016 to give an undertaking not to use, for the purposes of the prosecution, material it obtained in the s 119J process.

88. On 4 February 2016, the Prosecutor refused to give that undertaking (Exhibit CH-1, pp60-61), but the Prosecutor’s solicitor acknowledged that the notice was issued “during its investigation of the alleged offences the subject of both proceedings” (Neal annexure ‘B’ par 11 – emphasis added).

89. The Defendant submits (par 5) that the laying of charges such as in this case is not a Council function under the EPA Act, and that there is no evidence here of any other enforcement action or exercise of powers under that Act (c.f. the Local Government Act 1993 – “the LG Act”).

90. If the – or a major – purpose of the s 119J notice(s) is the criminal prosecution, the s 119J exercise is (some emphasis added):

“tainted by the improper purpose: Thompson v Randwick Municipal Council [(“Thompson”)] (1950) 81 CLR 87. ... The proper test is whether the notices may not have been issued absent the improper purpose, and clearly they would not have been” (subs par 6). “[T]he improper purpose need not be the sole purpose ... all that’s required is that the improper purpose be a substantial purpose” (T06.04.18 p12, LL20 and 37-38).

91. Mr Ireland says (subs pars 17-18):

17.   The question is can a Prosecutor use this illegal conduct as a launching pad to then issue a subpoena seeking documents that it has been informed about through that illegality.

18. The Defendant says it cannot as (a) this would be an abuse of process and bring the administration of justice into disrepute to allow a Prosecutor to rely on its own illegal conduct in this way; (b) the material obtained cannot be adduced in evidence as it will have been obtained in consequence of an impropriety contrary to s138(1)(b) [of the Evidence Act], and as a result cannot be regarded as being sought to add to the body of relevant evidence in the proceedings; and (c) the Prosecutor cannot establish a legitimate forensic purpose without the illegally obtained material. ...

92. His primary submissions continued, saying (pars 20 to 22) that it is only through the admissions and records produced in response to the s 119J notice directed to the Defendant that the Prosecutor became aware:

1. that ENP existed and was involved in the project;

2. that the Defendant was its sole director;

3. that the Mansfield Family Trust was also involved (regarding a shed); and

4. that K&C was contracted to provide site plans.

(See also T06.04.18 p22-23.)

93. The Defendant further submits (pars 23 to 28) that the Prosecutor’s reliance on the notice, admitted by Council to have been issued as part of investigating criminal charges, brings into play the principles spelt out in the Zhang decision, and renders the notice ultra vires. It is not legitimate for the Prosecutor to build upon information obtained illegally. To allow reliance on such material may amount to an “abuse of process”. Also, a prosecutor cannot obtain documents in this way, for the purpose of examining them to see if they might contain something relevant and/or helpful to its case – “fishing” is not permitted.

Zhang

94. As I have already noted ([18]), Mr Ireland places particular reliance, on behalf of the Defendant, on the Chief Judge’s decision in Zhang, saying (at T06.04.18 p25, L30) that the principle arising from that case “applies directly here”.

95. That reliance is challenged by the Council, so the Zhang decision needs to be closely examined.

96. In Zhang, a notice was issued, in a prosecution context, to a witness, under what was then s 118BA of the EPA Act, which relevantly provided:

(1)   A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.

(2)   An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.

(3)   An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(4)   The place and time at which a person may be required to attend under subsection (3) is to be:

(a)   a place and time nominated by the person, or

(b)   if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.”

97. Mr Zhang was alleged to have “over-excavated” his land, i.e. gone beyond what his DC allowed.

98. Council officer Woodgate commenced Local Court proceedings against him, and Zhang pleaded not guilty. Before the scheduled hearing, Woodgate issued a written notice to a Mr Ferguson to attend the Council office to answer questions “about the over-excavation of [the subject land]”. Ferguson was the sole director of a company which had prepared two SEEs in relation to applications for modification of the DC. The letter enclosing the notice made clear that the interview concerned Ferguson’s relationship with Zhang and the land.

97. Zhang contended ([7]) that the Notice was “a species of contempt of court, an abuse of process, and ultra vires”. The council responded ([8]):

... With respect, our client does not agree. The issuer of the Notice reasonably suspects Mr Ferguson to have knowledge of matters the subject of this prosecution and the Notice is thus properly issued under Council's functions under the EPA Act.

The issuance of the Notice is neither unreasonable nor improper. It is in the interests of all parties that this matter be investigated as thoroughly as is reasonably possible. Nor can it be said, in that regard, that the issuance of the Notice is prejudicial to your client.

100. Zhang commenced Class 4 judicial review proceedings seeking declaratory and injunctive relief.

101. Meanwhile Council served its brief of evidence for the hearing in the Local Court, due to commence 4 February 2015.

102. The Class 4 proceedings were heard on 19-20 November 2014.

103. Among other things, the Chief Judge held (headnote at pp2-3):

(1)   The Notice is ultra vires because it was issued in aid of the pending criminal proceedings against the applicant to enable the council to exercise its function to prosecute for the offence against the EPA Act, but that function is not a function of the council under the EPA Act.

(2)   The function (the power) of a council to prosecute for an offence against the EPA Act or the Environmental Planning and Assessment Regulation 2000 (NSW) is not conferred by the EPA Act but rather by the [LG Act].

(3)   Section 118BA of the EPA Act should not be read down so as to prevent it from being used against a person other than a defendant in pending criminal proceedings, just because the criminal proceedings have been commenced.

...

(6)   The use of the power under s 118BA of the EPA Act to compel a person who is not a defendant in pending criminal proceedings and who is not yet even a witness to answer questions in relation to matters the subject of the criminal proceedings does not give the council an advantage which the rules of procedure of the Local Court would otherwise deny the council.

(7)   The use of the power under s 118BA of the EPA Act does not impermissibly interfere with the pending criminal proceedings in the Local Court or the course of justice.

...

104. His Honour said (at [64] to [71] – emphasis added):

64   I consider that there is force in Mr Zhang's first statutory construction argument that the Notice is ultra vires because it was issued in aid of the pending criminal proceedings against Mr Zhang to enable the council to exercise its function to prosecute for the offence against the EPA Act, but that function is not a function of the council under the EPA Act.

...

66 The right of a council to institute a prosecution for an offence against the EPA Act or the regulations is to be found in s 14 of the Criminal Procedure Act. The power of a council to institute proceedings for an offence under any Act is in the [LG Act], being conferred either directly by ss 21, 684 and 687 of the [LG Act] or indirectly because the power is supplemental or incidental to, or consequential on, the exercise of the functions conferred on a council by or under the [LG Act] or any other Act including the EPA Act ...

...

69   The upshot is that the function (the power) of a council to prosecute for an offence against the EPA Act or the regulations is not conferred by the EPA Act but rather by the [LG Act]. The consequence is that the power under s 118BA of the EPA Act cannot be used to issue a notice to obtain information to enable a council to exercise its function to prosecute for an offence against the EPA Act because that function is not a function under the EPA Act.

70   In the case of the Notice issued by Mr Woodgate, the evidence establishes that it was issued to require Mr Ferguson to answer questions in relation to the matter the subject of, and in aid of, the pending criminal proceedings in the Local Court against Mr Zhang. That is to say, the Notice was issued to obtain information to enable the council to exercise its function to prosecute for the offence against the EPA Act. That purpose is plain from the evidence of the timing and circumstances of the issue of the Notice; the express reference to the pending criminal proceedings in the heading of the covering letter serving the Notice; and the heading and statements of the council's solicitors in their letter responding to Mr Zhang's solicitors' demand that the Notice be revoked as being in contempt of court, an abuse of process and ultra vires. The council speculated in submissions that the Notice might have been issued for some other purpose, such as to investigate whether to exercise other enforcement functions of the council, such as issuing an order under s 121B of the EPA Act. However, in the face of the evidence that the Notice was issued in aid of the pending criminal proceedings against Mr Zhang, “it is useless to speculate on what might have been”: [The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333] at 346 and see also 342-343.

71   In the circumstances, therefore, the council acted ultra vires the power in s 118BA by issuing the Notice requiring Mr Ferguson to answer questions in aid of the pending criminal proceedings against Mr Zhang. The Notice should therefore be declared invalid on this ground.

105. His Honour concluded (at [122]-[123]):

122   I find that the Notice is ultra vires in two respects: first, the Notice was issued to enable the council to exercise its prosecutorial function in aid of the pending criminal proceedings against Mr Zhang but that function is not a function under the EPA Act, and secondly, the Notice failed to identify to the addressee the matter in relation to which the questions were to be asked. The Notice should therefore be declared invalid.

123   These errors do not, however, mean that the council cannot validly exercise the power under s 118BA to give a notice to a person other than Mr Zhang, notwithstanding that criminal proceedings are pending against Mr Zhang. It is therefore not appropriate to grant the injunctive relief sought by Mr Zhang.

106. As Mr Ireland noted (T06.04.18 p23, LL49-50 – emphasis mine):

It’s not a relevant point of distinction in terms of principle in my submission that in that case the criminal proceedings had already been commenced.

107. He further submitted (Tp24, LL33-48):

So in terms of a principle that rendered the notice invalid, the temporal distinction between notices issued after proceedings had been commenced or beforehand, doesn’t come into play as a matter of principle. Rather the question is, is the notice being used to obtain information to enable a council to exercise its function to prosecute. In my submission, in this case, it’s overwhelming clear on the evidence that it was, but as I’ve indicated, having regard to the law of improper purpose challenges in the area of administrative law and judicial review, I don’t need to demonstrate that that was the sole purpose.

Although, in my submission on the evidence, your Honour would, and could so find, I only need to demonstrate that the impermissible purpose, if there were mixed purposes, was a substantial purpose. Or put another way, that the proper characterisation of events was that council was seeking the material substantially to investigate, and then commence prosecution proceedings against my client.

The Defendant raises other objections to the subpoenas

108. The Defendant also raises (pars 29-49, T06.04.18 pp28-32, reply subs pars 34-37, and T31.05.18 pp61-63) some additional specific objections to the subpoenas:

1. the absence of a time specification re the creation of documents sought in paragraph 1 the ENP subpoena;

2. specification of a time period outside the charge period in paragraph 2 of it; and

3. focus on an eco-tourist facility in paragraph 1, when Council does not base its case on the purpose – the charges concern either an innominate unspecified prohibited use, or a dwelling house use, and the parties dealt with an eco-tourist facility outside the charge period.

109. The K&C subpoena also seeks documents created after the charge period, K&C having been first engaged only after the charge period.

110. The Prosecutor acknowledged in a letter dated 22 February 2018 (see Neal p37, par 21), in respect of the K&C subpoena:

To the extent that any documents are produced which are not relevant to the Class 5 proceedings, those documents will not be put into evidence.

111. The Defendant argues that the relevance, to the prosecution, of these broadly defined documents, created outside the charge period, must be explained to the Defendant and the Court.

112. The Defendant submitted (pars 47 and 49) that:

• “The subpoenas are plainly issued by the Prosecutor in order to ascertain whether the Prosecutor has a case at all against the Defendant and to ascertain what that case might be”; and

• in the absence of apparent relevance, the subpoena must be set aside: National Employers’ Mutual General Association Ltd v Waind and Hill; Waind and Hill v National Employers’ Mutual General Association Ltd (“Waind”) [1978] 1 NSWLR 372.

Legitimate forensic purpose?

113. “Mere relevance” is not enough to establish a legitimate forensic purpose, and it is not proper to subpoena documents merely to determine whether they may be relevant: Attorney General (NSW) v Chidgey (“Chidgey”) (2008) 182 A Crim R 536 at [59]-[60].

114. (In developing his arguments, Mr Ireland took the Court to a large number of authorities. Many of the older authorities on subpoenas were well summarized by Moffitt P in Waind, and relevantly, in this Court, one might refer to my judgment in Young v King (No 3) [2012] NSWLEC 42, and Craig J’s judgment in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation (“Azar”) [2010] NSWLEC 110. I also recently surveyed and applied the relevant authorities on setting aside subpoenas, in a civil context, in Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) [2017] NSWLEC 183.)

115. The Defendant submits (par 8) that the Prosecutor bears the onus of establishing that each of its subpoenas has a legitimate forensic purpose, i.e. that the documents sought have “apparent relevance to the issues in the proceedings”, and that “it is ‘on the cards’ that [they] will materially assist the prosecutor’s case”: Chidgey, at [64]; and Ku-ring-gai Council v Chia (“Chia”) [2018] NSWLEC 40.

Saleam

116. Mr Ireland relies also on R v Saleam (“Saleam 1989”) (1989) 16 NSWLR 14. In that judgment (at 18C), the Court of Criminal Appeal (“CCA”) restated the need for a court to be satisfied “that there is a legitimate forensic purpose for which the documents are sought” (subs par 10).

117. As the present context is criminal proceedings, it is appropriate to note here some more detail of that CCA decision.

118. The lead judgment was given by Hunt J. Carruthers and Grove JJ agreed with it, and it is worth quoting at some length.

119. The accused was appealing against certain convictions, and sought access to documents produced by the Commissioner of Police in response to a subpoena which Hunt J noted (at 16D) had sought:

the production of every document relating to the investigation and prosecution of the offences with which the appellant and a co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at the trial.

120. Hunt J said (at 16G-17F – emphasis added):

The terms in which the subpoena was expressed were certainly very wide. The documents sought were, however, specified with some (if perhaps insufficient) particularity, in that in effect every document in the possession of the police had to be produced. The subpoena obviously could be complied with, and it was thus not oppressive, if sufficient time were given. It was nevertheless far too widely drawn and upon its face there could have been no legitimate forensic purpose in having produced many of those documents after the trial had taken place (if, indeed, there would have been any such purpose in having them produced before the trial): Commissioner for Railways v Small [(“Small”)] (1938) 38 SR (NSW) 564 at 573-575; 55 WN (NSW) 215.

The time for the Commissioner to complain of the width of the subpoena had, however, passed, for he had in fact been able to produce the documents. (The documents to which access was specifically objected fell within a clearly identified category, being the reports of the investigation into the allegations of perjury.)

The width of the subpoena certainly on its face cast doubt upon the legitimacy of the forensic purpose for which the production was required. Again on its face, the subpoena appeared to be no more than yet another manifestation of the currently fashionable ploy of achieving, in effect, a onesided (and impermissible) discovery against the police by having a call made upon such a subpoena shortly before the trial. It also appeared to be a variation of another currently fashionable ploy of making allegations of misconduct against the investigating police officers in the hope that the subsequent investigations by the Police Internal Affairs Branch and (where appropriate) by the Ombudsman will turn up something to be used on the issue of their credit at the trial.

In the present case, moreover, the issue of the subpoena after the trial had taken place, when there is no ground of appeal to which the documents could possibly relate, gave every appearance of a fishing expedition, in the sense that the appellant had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd [(“Fairfax”)] (1952) 72 WN (NSW) 250 at 254.

However, as Brennan J observed in Alister v The Queen [(“Alister”)] (1984) 154 CLR 404 at 455-456, it is appropriate to adopt a more liberal approach to such matters in a criminal case. His Honour was there speaking of the exercise of a court's power to inspect documents for which a claim of public interest immunity had been made by a Crown instrumentality, to ensure that such a claim does not prevent the disclosure of an injustice suffered by an accused.

In my view, such an approach is relevant also in determining whether there is a legitimate forensic purpose in having the documents produced at any stage of the criminal process, whether or not a claim of such immunity (or any other kind of privilege) is made.

121. Later (at 18C-D, and E/F), His Honour continued (emphasis added):

In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf [Waind] at 385), and the judge's initial refusal to permit inspection should always be open to review. ... [The Court] must be satisfied that it is “on the cards” that the documents would materially assist the accused in his defence.

122. His Honour noted (at 19E-G) that some legal practitioners had come to interpret the High Court’s reasoning in Alister as overruling the principle that there is no discovery in criminal cases, such that the practice had grown of issuing subpoenas “nakedly for the purpose only of discovery”. The High Court had used the word “discovery” in Alister only in the sense of “disclosure” appropriate to criminal matters.

123. Mr Ireland submitted (par 10) that Saleam 1989 stands for the principles that a subpoena drawn too widely will often have no legitimate forensic purpose, and/or that one seeking a large body of documentation that will not be relevant, “even if some may turn out to have some relevance”, will be set aside.

Other authorities

124. Mr Ireland referred the Court to many other authorities, and I shall now note some of them.

125. In Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (“Samrein”) (1982) 41 ALR 467; 56 ALJR 678, a strong High Court plurality, dealing with a power to acquire land, said (at 41 ALR 468-9 – emphasis mine):

The critical question in the present case is whether the purposes for which the Board proposes to acquire the land are purposes of the Act. If the Board is seeking to acquire the land for an ulterior purpose, there will be an ostensible but not a real exercise of the power granted by the Act. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition, it will be an abuse of the Board’s powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorized purpose ...

126. Their Honours added (at 470):

The proper conclusion is that the Board’s proposed acquisition was for the purpose of acquiring a city block on which it could erect a building in which it would provide accommodation for its own employees. The joint venture with GIO was simply a means to that end. The case is distinguishable from [Thompson], in which it was established that no attempt would have been made to resume the particular land in question if it had not been the desire of the council to make a profit from the resale of those lands and to reduce the cost of construction of the new road in that way ...

127. In his oral submissions in reply, Mr Ireland relied upon another land acquisition case, decided by the Supreme Court only on 1 May 2018, namely Desane Properties Pty Ltd v State of New South Wales (“Desane”) [2018] NSWSC 553, in which Hammerschlag J said (at [281]-[283]):

281   A statutory power must be used only for the purposes for which it is given. In this case, the power to acquire is for the purposes of the Roads Act [1993]. The requirement to give the PAN is imposed by the [Land Acquisition (Just Terms Compensation) Amendment Act 2016]. In this case, the power to give a PAN is likewise to be exercised only for the purposes of the Roads Act.

282   If RMS’ purpose in giving the PAN (as part of the process of acquiring the Property) was an ulterior one, there will be an ostensible, but not a real, exercise of the power. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition. It will be an abuse of RMS’ powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose; [Samrein] at 679.

283   Whether a power is exercised for an improper purpose is a question of fact ...

128. As Aronson and Groves noted in the 5th edition (2013) of their text “Judicial Review of Administrative Action” (at par 5.570 on p319), there are often several purposes behind an impugned decision and the courts have been called upon to look for the “true” or “dominant purpose”, and/or to observe the effect of the decision, i.e.:

“whether it made no difference, or might have made a difference, or materially or substantially influenced the outcome, or was critical to the outcome.”

129. The learned authors drew attention to a number of cases and then:

“... submitted that unless there are contrary indications in the particular statute, the proper test should be whether the challenger missed a real chance because one of the decision-maker’s purposes was unlawful ...

It is too difficult to have a test that requires a fine calibration of the weight (substantial or dominant) that the decision-maker put on the forbidden purpose.”

130. In Chidgey, the relevant subpoena was issued to the Commissioner of Police, in the course of committal proceedings in a drug case involving undercover police activity. The Commissioner claimed it was an abuse of process and served no forensic purpose. The Defendant claimed that the legitimate forensic purpose was assisting the defence in challenging admissibility of evidence on grounds that it was improperly or illegally obtained.

131. The CCA referred (at [58]-[62]) to cases such as Small, and Carroll v Attorney General (NSW) (“Carroll”) (1993) 70 A Crim R 162, and applied (at [64]) a later iteration of R v Saleam, reported at [1999] NSWCCA 86 (“Saleam 1999”), which endorsed what had been stated by the CCA (per Hunt J) in Saleam 1989 (see [116]ff above). (The Defendant in the present case also referred to Small and Carroll, as well as Saleam 1989, and I have reviewed all the cited authorities.)

132. Cases like Small (at 573-5) have long recognised that subpoenas may be addressed to “strangers”, but they “must specify with reasonable particularity the documents which are required to be produced”. Normally they would be produced to the Court and not directly to the parties. If issued to a party, a subpoena is no substitute for discovery, interrogatories, or the seeking and obtaining of further and better particulars.

133. Mr Ireland’s reply submissions (par 34) refer to “the principle in Carroll”, but the headnote does not identify by a specific statement any one particular principle to be drawn from that case, albeit that the judgments affirm a general proscription of “fishing”, “trawling”, and seeking documents on the basis of no more than “speculation” as to what might be revealed. (See also Saleam 1989, per Hunt J, in this latter respect.)

134. In fairness to the Defendant, I should examine Carroll in some detail.

Carroll

135. The plaintiff sought a review of warrants issued under the NSW Listening Devices Act 1984, contending that the issuing judges had no, or no proper, supporting material before them. He sought access to the police affidavits relied upon. For that purpose the District Court issued subpoenas to the Commissioner of Police. The Commissioner successfully claimed public interest immunity, and the plaintiff sought relief from the Supreme Court. The proceedings were urgently referred to the Court of Appeal, and were heard by Kirby ACJ, Mahoney AP, and Hunt AJA. A similar challenge was simultaneously before the Federal Court in concurrent proceedings.

136. The matter concerned more than the subpoenas. As recorded in the head note (at 162), the Court had to determine also whether the Supreme Court can review a judge’s decision to issue a warrant; if so, can a single judge exercise the power, or only the Court of Appeal; and whether the Court should make declarations as sought in the summons, namely that the warrants were “defective and invalid ... issued contrary to law and of no legal effect”. It was unstated in the summons, but inferred by the Court of Appeal from oral argument, that the plaintiff was seeking an order “quashing the warrants or otherwise setting them aside” (at 166).

137. Among the contentions of the Commissioner was the argument that the plaintiff’s application for access to the police affidavits was (p 168) “nothing less than a ‘fishing expedition’, with no legitimate forensic purpose, to which [the Court of Appeal] would not lend its authority ...”.

138. The decision of the Court of Appeal, by majority, was that the affidavits should not be made available for inspection by the plaintiff, and the headnote states that the Court applied Small, Alister, and Saleam 1989, as well as Maddison v Goldrick (“Goldrick”) [1976] 1 NSWLR 651.

139. The three judges took quite individual approaches, which I need to abstract now at regrettable length.

140. Kirby ACJ, who dissented from the other two judges’ decision, said (at 169-170 – emphasis added):

This brings me to the argument that the summons represents a mere “fishing expedition” on the part of the plaintiff. Indeed, at one stage, it was suggested that it involved the pursuit of an ulterior purpose. This was the gaining of access to affidavits earlier sworn by police for the purpose of arming those representing the plaintiff at the trial with material with which to cross-examine police witnesses in order to suggest that they had acted in some improper, reprehensible or even illegal way in obtaining the damaging conversation implicating the plaintiff in the conspiracy charged.

The plaintiff urged that he had a legitimate forensic purpose to secure access to the police affidavits. That purpose was to establish (or strengthen) the case for attacking the validity of the warrants, based otherwise only upon the transcripts of the police de-briefings. The reference to the need for a legitimate forensic purpose can be traced through a series of cases in which this Court has resisted the misuse of subpoenas to permit parties to civil or criminal proceedings to embark upon “a fishing expedition” in the hope that something might possibly turn up that would be of utility in the trial. The need for precision in the drafting of subpoenas was emphasised in [Small] at 573f. The distinction between fishing in a pool for fish “of a particular kind” and dragging the pool “in order to find out whether there were any fish there or not” was made in [Fairfax] at 254.

A difficulty often arises in identifying with precision the documents to which access is sought and the purpose of such access: see [Goldrick] at 666. In the view of Brennan J in [Alister], at 456, it is appropriate to adopt a more liberal approach to such matters in a criminal case, in order to ensure, so far as possible, against the risk of injustice to an accused person. Where a claim for public interest immunity is made, different views have been expressed concerning the circumstances in which access will be permitted. In the opinion of Gibbs CJ in Alister (at 414) a mere fishing expedition will not be allowed. But access may be granted if it appears to be “on the cards” that the documents would materially assist the accused. This is a somewhat more relaxed criterion than the one suggested by Lord Fraser in Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 436 (HL). His Lordship considered that there had to be “definite grounds for expecting to find material of real importance” to the party seeking disclosure.

141. His Honour then dealt (at 170) with Saleam 1989 (especially the passage quoted at [120] above, from p18), and accepted and applied Hunt J’s criteria. His Honour said (at 170 – emphasis added):

... I am far from convinced that the plaintiff has no legitimate forensic purpose to press his application for access to the police affidavits. Clearly, it is to the forensic advantage of the plaintiff to exclude the evidence obtained pursuant to the warrants issued under the Listening Devices Act. In the absence of a lawful warrant, the recording of a private conversation by the use of a listening device, in contravention of s 5 of the Act, would render evidence of that conversation inadmissible in any criminal proceedings: see s 13(1). None of the exceptions provided by s 13(2) to this consequence applies in this case. ... If, as appears to be conceded, much, if not all, of the prosecution case against the plaintiff rests upon the evidence of private conversations secured (relevantly) by use of a listening device, the exclusion of such evidence, by an attack on the lawfulness of the warrant is, if admissible, not only a legitimate forensic purpose but an entirely justifiable one. Here, there was no difficulty in identifying the documents sought. There was no suggestion that the subpoena was expressed in terms too wide.

142. Kirby ACJ concluded (at 180):

Being unable affirmatively to conclude that the plaintiff has made good his attack on the validity of the warrants, without the affidavits which he sought, his application must be dismissed with costs.

143. Mahoney AP said (at 181 – emphasis added):

Where documents are subpoenaed in a proceeding, and no objection is taken to their production to the court, it does not follow that the parties subpoenaing them have the right to have them for inspection. The documents are produced to the court. If objection is taken to the inspection of them by the parties subpoenaing them, it must appear, to put the matter generally, that the documents are relevant to an issue for determination by the court in the proceeding.

There is a distinction between a subpoena which requires production of documents from a party in a proceeding and one which requires production of documents from a third party. To an extent, the court will allow to a party subpoenaing documents a somewhat broader latitude in obtaining for inspection documents from a third party which, being from a third party, could not have been obtained on discovery or otherwise in the proceeding: see [Small] at 573 ...

But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a “fishing expedition”, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.

144. His Honour continued (at 182-183 – emphasis added):

To have access to the subpoenaed document, the party must show or it must appear that the document is relevant to the issue for decision. But mere relevance is not enough: thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: “The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them.”

In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case ... prima facie the documents are relevant to the issue to be decided ... But, in my opinion, it is not sufficient for a party subpoenaing the document to say “the document is relevant because, if it does anything, it establishes the case against me”. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: “I wish to see the document to see if it may assist my case.” That, in my opinion, is not sufficient.

If such affidavits be not produced and if consequently they be not in evidence, then the only evidence in support of the claim for a declaration is the “de-briefing” documents and material associated with them. Mr Horler QC suggested that there was in those documents a basis for the conclusion that the warrants had been obtained mala fide or without the necessary evidence. It is sufficient to say that I do not agree with that submission. Those documents were not the only documents to which the officers and the court could have had reference in determining this issue. There may have been other evidence to support the court's “satisfaction” within s 16(1). But, however that be, I would not find, on the basis of such material alone or with the other documents tendered, that there was mala fides or that the relevant material did not exist.

Upon these grounds I would dismiss the summons.

Having arrived at this conclusion, it is not necessary for me to express a concluded view upon the question whether it is open to an accused person against whom evidence obtained in this way is proposed to be tendered to object successfully to the tender of it upon the ground that it was obtained mala fide or as part of a conspiracy to pervert the course of justice in his trial and/or that the warrants obtained under s 16 were obtained as part of such an activity. There are some circumstances in which, legislation apart, evidence improperly or illegally obtained may be excluded by a discretionary ruling of the judge at a trial even though the evidence is in terms both relevant and probative: see generally Bunning v Cross (1978) 141 CLR 54 at 72 et seq. ... [T]he validity of the warrant, if relevant, would simply not be determinative of the question whether, by a discretionary ruling, the evidence should be excluded.

145. Mahoney AP concluded (at 184 – emphasis added):

I have referred to these matters because they have been raised by what has been said during argument in this proceeding. However, I do not express any concluded view in relation to them because, as I have said, assuming such matters in favour of the plaintiff, he has not in the present proceeding adduced evidence to establish a case warranting the making of the orders he seeks.

Since these reasons were prepared, I have had the opportunity of reading, in a draft form, the reasons for judgment being prepared by Kirby ACJ. His Honour's observations raise large questions: I do not disagree with his view of the importance of them. I have not dealt with them because they are not necessary for the decision of this proceeding and because, in my respectful opinion, the pendency of this trial makes it desirable that the waters be not muddied by observations made outside the confines — and the evidence — of that trial.

As I have indicated, the fact that this proceeding fails does not mean that there is an injustice which cannot be remedied. If the evidence obtained by the listening devices be the result of mala fides or if it be otherwise within the scope of the abuse dealt with by Bunning v Cross, that can be raised and dealt with at the trial. The evidence can then be dealt with — and admitted or rejected — not according to the technicalities of the Listening Devices Act, but according to the substantial merits of the matter.

146. Hunt AJA, who joined Mahoney AP in the 2:1 majority, said (at 185-186 – emphasis added):

The principal issue which was debated during the hearing, and which was (by majority) decided against the plaintiff, was his application for access to the affidavits which were before the various judges who issued the warrants and which had been produced to this Court on subpoena by the third defendant (the Commissioner of Police). Objection was taken by the defendant to such access being granted upon the basis that the plaintiff was conducting a fishing expedition in the sense that, as he otherwise had no evidence which would support his claim that the warrants had been issued unlawfully, he wanted to trawl through the affidavits in the hope of finding in them some evidence which would assist his challenge: ...

The plaintiff, however, asserted a legitimate forensic purpose in having access to the affidavits produced on subpoena ... in that it was “on the cards” that they would materially assist him in his application: [Saleam 1989] at 409, adopting the test applied in claims of public interest immunity as stated by Gibbs CJ in Alister at 414. The plaintiff tendered the transcripts of “de-briefing” sessions conducted between the police officers who had sought the listening device warrants and their informants in order, it was said, to demonstrate either that those officers could have had no honest suspicion or belief that a prescribed offence had been, was about to be or was likely to be committed or that the judges who issued the warrants could not have been satisfied that there were reasonable grounds for that suspicion or belief: ....

It is true that some of the information conveyed by the informants to the police was of a fantastic nature. Kirby ACJ has referred to that information. But reference to the transcripts themselves reveals that there is also a clear message conveyed by the informants that they took seriously the intentions of the alleged conspirators in relation to the basic elements of the conspiracy, and there is shown to have been discovered some measure of corroboration that they had at least access to certain of the means by which the conspiracy was to be carried out.

It would, in my respectful view, be wrong for this Court too readily to accept any argument by the plaintiff that the proposed conspiracy was so fantastic that no honest suspicion or belief could have been held by the police in the likelihood that such a conspiracy had been formed or was likely to be formed in the future. I accept that the concept of privacy which is protected by the Listening Devices Act is of grave importance, but I do not accept that its existence should distort the usual process of fact finding. A suspicion or a belief may honestly be held notwithstanding that others would not hold it based upon the same material, and any process of review which may be available would not be by way of rehearing. It would require a very substantial case before the findings of the judges which justified the issue of the warrants could be set aside.

Something more than has been shown must be demonstrated before it could be said that it was “on the cards” that such assistance would be forthcoming from the affidavits which were before the judges. It should be emphasised that the prescribed offence was a conspiracy, and not the substantive crime which was the subject of the conspiracy, and the fact that there obviously must be some scepticism that such a crime could successfully be carried out does not mean that there should be the same degree of scepticism concerning the likelihood that a conspiracy was likely to be formed in order to carry out that crime. ...

I did not accept that the material put forward by the plaintiff established that it was “on the cards” that the affidavits before the judges would assist him in his application. It was by reason of such absence of any legitimate forensic purpose on the part of the plaintiff that I agreed in the majority decision of the Court to deny him access to the affidavits which were before the various judges who issued the warrants under challenge. There was no other evidence before the Court to support the plaintiff's challenge to either the honesty of the suspicion or belief of the applicants for the warrants or the reasonableness of the grounds for that belief which had been accepted by the various judges.

The plaintiff also challenged the warrants upon the basis that the offences in relation to which that suspicion or belief was held were not prescribed offences within the meaning of the Listening Devices Act. The relevant offence here is not, of course, that with which the plaintiff was ultimately charged. Evidence obtained pursuant to a warrant issued upon the basis of a suspicion or a belief that one offence was likely to be committed is admissible to prove any other offence which may be disclosed by that evidence.

147. In Wingecarribee Shire Council v O'Shanassy (No 2) (“O'Shanassy”) [2014] NSWLEC 32, Pepper J surveyed the authorities and concluded (at [17] – emphasis added):

In summary, therefore, the question for determination is whether the documents sought in the subpoenas materially assists on an identified issue in the criminal proceedings, or whether there is a reasonable basis beyond speculation that the documents will assist?

148. In R v Ali Tastan (1994) 75 A Crim R 498, Barr AJ stated (at 504), that the Court has a “duty” to require the party issuing the subpoena “to identify expressly and precisely the legitimate forensic purpose”, which (at 505-6) will exist “if it appears to be ‘on the cards’ that the documents will materially assist” the issuing party, and not if all that party is doing is “trying to get hold of the documents to see whether they may assist him at all in his case”.

149. Mr Ireland submitted (T06.04.18 p35, LL28 to 37 and 44-48 – emphasis added):

... the Act envisages, certainly when a notice is issued to someone to answer questions that it will be in the contemplation of council there will be criminal proceedings and that's a simple acknowledgement that a council has dual roles unlike the Crime Commission, unlike ICAC, it investigates, it prosecutes, it can commence civil proceedings.

...

My submission is the intent of these provisions is that the council could issue a notice when it's investigating a breach of the Act but it's quite clear from these provisions that it wasn't a requirement that the council rule out prosecuting at the time when it issues the notice and council's by their nature in these sorts of cases will have a number of options which include both prosecuting and commencing class 4 proceedings or issuing 121B notices.

262. The relevant amendments were made on 31 July 2015, the order in Zhang having been issued on 29 August 2014. Sections 119A to 119U, dealing with Council enforcement powers, were introduced. Mr O’Gorman-Hughes quoted (par 26.1) from the Minister’s Second Reading Speech (emphasis in the subs):

Councils also will have the power to require information or records before entering premises and to seize items that enforcement officers suspect are connected with an offence. These new powers will greatly assist councils in carrying out their enforcement role and allow them to build cases against suspected offenders.

263. He also noted (par 26.2) that, in s 119F, an “investigation purpose” can involve seizing “anything that the officer has reasonable grounds for believing is connected with an offence against this Act”, or can “afford evidence of the commission of the offence”.

264. He, therefore, submitted (par 26.3):

The intention of the Act, as amended following the issue of the order in Zhang, was to make clear that an investigation purpose included, amongst other things, gathering evidence of the commission of an offence. As conceded by the defendant, s. 34(1)(b) of the Interpretation Act allows the Court to consider the Second Reading Speech to determine the meaning of a provision if it is ambiguous. To the extent that there is any ambiguity in what is meant by an investigation purpose, the 2nd reading speech confirms that it includes allowing Council's to build cases against suspected offenders.

265. In Chia, which was decided only on 22 May 2018, Robson J refused an application to exclude evidence on the basis that it was (subs par 26.5) “clearly contemplated by the legislature that there is no division between the investigative and prosecuting bodies for offences created by s. 125" (see Chia, at [89]).

266. In the present case, the Council “wears many hats” – it is a prosecuting authority, an investigating authority, and an authority that tries to remedy breaches of the EPA Act (T31.05.18 p45, LL22-24).

267. Had the intention of the post-Zhang amendments been to limit an acceptable investigation purpose to the commencement of only civil proceedings, Mr O’Gorman-Hughes submits that the legislature could have used the term “breach of the Act”, rather the word “offence” (par 26.6(b)).

268. Mr O’Gorman-Hughes submitted (par 26.6(a)) that the Defendant has failed to establish that “the notice was not issued for the purposes of the Council exercising its functions under the EPA Act”.

269. In any event, the responses to the notices were not the only source of Council’s knowledge of the involvement of ENP and K&C – the original complaint implicated ENP, the Google searches indicated ENP’s involvement in the development, and K&C authored the SEE for the Defendant’s DA.

270. Mr O’Gorman-Hughes’s written materials (subs par 17.3) also included, “for completeness” (Tp43, L35), a more comprehensive extract from Aronson’s text (6th ed) than Mr Ireland’s extract from the 5th ed (see [128] above), and he drew the Court’s attention to the text’s commentary on “Problems of proof” (sec 5.580).

271. He despatched swiftly (pars 27 to 33) the other identified grounds of challenge – “outside the charge period” ((f), (i) and (l)), “no time limit” ((h)), and “eco-tourism facility” ((j)). As Mr O’Gorman-Hughes noted (Tp48, L43-p49, L1):

[They are] simply a reflection of the fact that at one point the defendant referred to the unauthorised development as a retreat for his family. In the [K&C] documents there was a reference to it being intended for use as a dwelling house. Ultimately it has been used as an eco tourism facility so the subpoena simply refers to the works as either the works or the proposed eco tourism facility, so that the recipient of the subpoena can't avoid producing documents by saying, well it's not an eco tourism facility, when it was carried out it was a dwelling, or if we sought access to a dwelling, they can't say, well it was always going to be an eco tourism facility.

272. If the Court found any element of the subpoenas “too broad”, it could “set aside the offending portions, or exempt certain documents”. Contrary to what the Defendant submitted, the Court’s powers are not limited to setting aside the whole of any offending subpoena (par 34).

I: The Defendant in Reply

273. Mr Ireland’s written submissions in reply responded to the original version of the Prosecutor’s written submissions, which were heavily amended on Day Three, and were followed by Mr O’Gorman-Hughes’s oral submissions.

274. Mr Ireland replied orally, at some length, to both the Prosecutor’s written and oral submissions, and provided yet another bundle of authorities (T31.05.18 p54, L2). I have already noted above some of his submissions in reply.

275. In response to Mr O’Gorman-Hughes’s defence of the use of the phrase “relating to”, Mr Ireland said (reply subs par 3) that it remained necessary for the subpoena to be “properly confined by further specific language”. In this regard, the challenged subpoenas use language which is too wide and uncertain, and the Prosecutor’s reference to Southern Pacific ([242] above) is “interesting, but completely beside the point” (T31.05.18 p50, L47).

276. The Prosecutor’s forensic purpose is deprived of legitimacy because it arises from the invalid use of s 119J to obtain evidence, and the subpoenas, therefore, fail the Chidgey test, and amount to an abuse of process (reply subs pars 4 to 6).

277. In response to Rogers, the Prosecutor, who bears the onus of establishing a legitimate forensic purpose, cannot point to any authority where conduct of this kind by a Prosecutor has been allowed (par 8). It is not necessary for the defence to establish a foreign or ulterior objective to make good the claim of abuse of process (par 9). Relief will be granted where there is oppression and unfairness to the Defendant, and/or the administration of justice will be brought into disrepute (pars 10-11).

278. Such relief need not be a stay of proceedings – R v Seller [2013] NSWCCA 42, at [110]-[117]) – and will often involve exclusion of evidence at trial, or, as sought here, the setting aside of subpoenas before trial (par 12), so as to avoid the abuse (pars 15 and 21). “The Prosecutor is blatantly seeking to follow a line of inquiry exposed to it only by its own ultra vires conduct” (par 18). (See my discussion of Rogers at [153] to [161] above.)

279. Mr Ireland also submitted (reply subs par 17):

To allow the subpoena to [ENP] to stand based as it is on the information obtained in the ultra vires s119J notice would bear adversely on public confidence in the criminal justice system, having regard to the circumstances of this case.

280. In response to the Prosecutor’s argument based upon changes to s 119J’s statutory context, Mr Ireland submitted (reply subs pars 23 to 30, and 33 – emphasis added – and see also T31.05.18 p55, L22 to p59, L2):

23.   The section confining the purposes for which the s119J notice may be issued is s119C and s119A. The reference to criminal proceedings in s119S does not allow an inference to be drawn that it is within power for a Council to issue a s119J notice for the purpose of using the documents in criminal proceedings. First, documents may be sought for a valid investigation purpose within the meaning of s119A and 119C and later used in criminal proceedings, provided that is not a substantial purpose for the issue of the notice; there is thus no tension between s119S and ss119A and 119C.

24.   Section 119S does not provide that material obtained by a Council pursuant to s119J may be used by it in criminal proceedings. The section says that the material (obtained pursuant to the Division) will not be inadmissible on the grounds of self-incrimination, if the self-incrimination warning was given. It follows that s119S cannot reasonably be construed as conferring a power on Council of issuing a s119J notice to obtain material for use in a prosecution, a power that is not conferred by s119C. Such a construction of s119S is not open on the text of the section and is not necessary to give the reference to criminal proceedings and the self-incrimination warning provisions work to do as material obtained under a s119J notice can be used in criminal proceedings, but that cannot be a substantial purpose of the issue of the notice (as that is not an "investigation purpose").

25.   It may be that a Departmental investigation officer may be able to issue a s119J notice for the purposes of obtaining material for use in criminal proceedings, as the following specific "investigation purpose" is recognised in s119C for such a Departmental officer: "determining whether there has been compliance with or a contravention of this Act, including any instrument, consent, approval or any other document or requirement issued or made under this Act". No such investigation purpose is recognised for a Council in s119C, rather a Council is restricted to issuing a s119J notice for the purpose of enabling it to exercise its functions under the Act, and criminal prosecution is not one of those.

26.   Further, it is not in dispute that even a Council has a prosecutorial function; the point is it is not a function under the Act. Documents obtained to enable the exercise of a function under the Act (such as assessing development applications, rating, issuing s121B notices, etc.) may on occasion with perfect propriety be later used in a prosecution, whether for an offence against the Act or otherwise (and whether brought by Council or another prosecutor), in which case s119S applies to modify the common law privilege against self-incrimination. The section has nothing to say about a Council's functions under the Act, and does not make criminal prosecution such a function and operates quite sensibly even though that is not a function of Council under the Act.

27.   The replacement of s118BA and surrounding provisions with s119J and surrounding provisions was effected by the [Environmental Planning and Assessment Amendment Act 2014] assented to on 19 November 2014, prior to the decision in Zhang. That timing shows that the current provisions cannot be construed as seeking to displace the construction of the [EPA Act] reached by the Court in Zhang, which is that criminal prosecution was not a function of Council under the Act (the operative language in s119C).

28.   The wording of s119J must also be contrasted with the specific search and seizure powers described in s119F, which do expressly allow seizure "anything that the officer has reasonable grounds for believing is connected with an offence against this Act". These words or anything similar are specifically absent from s119J, the power to issue notices. The Minister's 2nd Reading Speech (Hansard, 22 October 2014) in relation to the 2014 amendments specifically noted the s119F amendments as allowing a council to gather evidence and build cases against suspected offenders. There was no corresponding change to the notice provisions in s119J. It is not permissible to go to the second reading speech to "determine the meaning" of s119J, which is not ambiguous or obscure and does not lead to any absurd or unreasonable result (see s34(1)(b) Interpretation Act 1987), but this speech may be had regard to (s34(1)(a)) as it confirms that the meaning of s119F and 119J is the ordinary meaning conveyed by their words, with s119F allowing seizure of material connected with an offence, and s119J only allowing notices for an "investigation purpose".

29.   The Prosecutor says that the reasoning and decision in Zhang does not apply here as Council was not exercising its function to prosecute at the time the notice was issued: par 25 Prosecutor's Submissions. However, this is not what Zhang says. The illegitimate purpose was issuing the s118BA notice "for the purpose of obtaining information to allow Council to exercise prosecutorial functions". The Prosecutor relies on inferences it says may be drawn from the submissions made by Mr Zhang (recorded at [20] of Zhang; par 23 Prosecutor's Submissions) rather than quoting the relevant parts of Preston CJ's reasoning and decision at [69] – [70] in Zhang (see Prosecutor's Submissions at par 24, [and [104] above]).

30.   In any event, even applying what the Prosecutor says is the law at par 24 of the Prosecutor's Submissions would lead to the striking down of the s119J notice here, as it was issued "to obtain information to enable a Council to exercise its function to prosecute". It does not matter, contrary to the Prosecutor's contention at par 25, that at the time the notice was issued, criminal proceedings had not started. That analysis would have absurd consequences, with a notice issued the day before a prosecution was filed being valid, the same notice issued a day after that event being invalid. That cannot be the law. Rather the law makes the determinant of validity whether the improper purpose is a substantial purpose of the notice's issue, not an arbitrary date selected by a prosecutor.

...

33.   It is irrelevant that there was a time period between the s119J notice and the commencement of proceedings, as the improper purpose was conceded at the time of their issue. The Prosecutor refused when asked to give an undertaking not to use the material obtained in the criminal prosecution: first Henderson affidavit, Ex CH-1, page 60-61. Further, the Prosecutor's solicitor acknowledged in correspondence that the s119J notice was issued "during its investigation of the alleged offences the subject of both proceedings" (letter 22 February 2018, page 8 Todd Neal Affidavit sworn 5 March 2018, Tab 36 Defendant's Bundle). This is a case where there was no other purpose than to gather evidence for use by Council in this prosecution, and that is impermissible having regard to s119C.

281. Mr Ireland submitted (T31.05.18 p57, LL10-20 – emphasis added) that:

... there was a dual purpose for the issue of the 119J notice and that at least as important as the purpose of obtaining material for potential class 4 or civil proceedings was the purpose of obtaining material because it was to be potentially used in criminal proceedings because it was thought by Mr Henderson that offences against the Act had been committed. ... there was a substantial purpose behind the issue of the 119J Notice, being to obtain and gather material that would be useful in any criminal prosecution.

282. The principles laid down by the Chief Judge in Zhang are unaffected by the changes in the legislation. The fact that the notice was issued some time before the proceedings were commenced (c.f. Zhang) “does not change the [adverse] inference [the Defendant submits that I] would otherwise ... draw on the evidence” (Tp59, LL46-48). The test is the same as that adopted in Samrein and Desane. Mr Ireland says (Tp59, LL17-24, LL37-40 and LL44-47 – emphasis added):

In order for the 119J notice to be found to be invalid, it is not necessary that your Honour finds that the sole purpose was to obtain information for use in criminal proceedings. It is merely necessary that your Honour finds that that was a substantial purpose and what is the evidence that we have here? The evidence we have here is that from the very outset, it was an important and substantial purpose, Mr Henderson said it was, to his mind, at least an equal purpose, to seek material for potential use in criminal proceedings, as well as also seeking material for potential use in civil enforcement proceedings. ... [T]he evidence as to what council actually did was that there was at least a dual purpose being, as I understand his evidence of equal importance to obtaining material for use in potential civil proceedings being the obtaining of material for use in potential criminal proceedings ... [Henderson] was speaking the language and thinking the language of criminal prosecution from the outset, and when council was asked to give an undertaking that they would not use this material in a criminal prosecution, council declined to give that undertaking.

283. Henderson’s evidence is (Mr Ireland’s subs at Tp60, LL8-9) “that there were really two coordinate purposes, both very substantial but relevantly, one which was entirely impermissible, having regard to the scope of 119J”, and (LL24-25) that “there's absolutely no evidence that if it had not been for this tainted dual purpose, the 119J Notice would have been issued”.

284. In terms of the other alleged defects in the subpoenas, Mr Ireland says (par 34, and Tpp61-62) that, contrary to Carroll, and O’Shannassy, the Prosecutor subpoena’d K&C to seek admissions which it does not know exist or not, but about which it is speculating, based on some remarks in the SEE, prepared in September 2016, well after the doing of the allegedly illegal works.

285. The “speculative” K&C subpoena exercise thus becomes “discovery”, contrary to authority. As it has no time limitation (par 35), “it will necessarily dredge up documents created well after the charge period that have no apparent relevance to the proceedings. “... [T]here is just no discrimination between documentation that may relate to the actual carrying out of the works ending in the charge during the charge period, and documentation that may have arisen in relation to completely different activities on the land after 30 November 2015” (Tp63, LL3-7).

286. ENP is directed to produce documents regarding the eco-tourist facility, but Mr Ireland argues that that facility is not the subject of any charges, and “apparent relevance” must be assessed by reference to the case as pleaded (see Azar, and reply pars 36-37).

287. In the absence of any evidence at all from Shelton, the Court must act upon Zoppo’s and Henderson’s candid concessions that the subpoenas were issued on the basis of the material obtained from the s 119J process. “... [T]he reason for the invalidity of the 119J notices is not because Mr Henderson had or had no knowledge of the existence or involvement of Eagle Nest Park, but because they were seeking documentation that would at least, as a dual purpose, potentially be used in criminal prosecution proceedings” (Tp64, LL1-5).

J: Consideration

288. The issue at this stage of the proceedings is not access to, the admissibility of, nor the probative value of, any documents produced in response to the challenged subpoenas, but their very validity. The Defendant seeks that their material/effective components be set aside completely, even though one appears to have been complied with already.

289. While I find some substance in the cases which Mr Ireland makes in respect of “fishing”, time frames (or lack of them), and overall width or breadth of one or both of the subpoenas, it is not really necessary for the Court to delve into those issues unless his principal challenge fails.

290. That principal challenge concerns the propriety of the Prosecutor’s strategy of deploying a s 119J process, and then using its output as the basis for issuing the challenged subpoenas. Are the subpoenas tainted by the inappropriate application of s 119J by the Prosecutor?

291. The subpoenas are, on their face, quite broad in their scope, and may infringe some of the established principles, K&C perhaps more so than ENP. I accept that, despite Basten JA’s or Gibson DCJ’s caution about “rewriting” them ([150]-[152] above), the objectionable elements to be found in them could easily be excised or confined. However, if the Defendant’s s 119J challenge succeeds, the Defendant’s more detailed criticisms need not be determined.

Authorities

292. I have quoted at length (largely in Section F above) from the judgments of many learned judges, who have covered the law on many issues which arise regarding subpoenas, such as abuse of process, ulterior purpose, and so on, and not only issues like breadth, time parameters etc.

293. Challenges often involve more than one such issue, and they frequently overlap. The issues regarding the two subpoenas in the present matter are not entirely the same, other than the implications for them of the principles in Zhang. In analysing the cases, confusion of principles is to be carefully avoided.

294. Saleam 1989, Carroll, Rogers, Ridgeway, and especially Zhang, are all relevant to the range of challenges to the present subpoenas, and passages from all of them have been quoted above, with some emphasis (see generally [94]-[107] and [116]-[161]). I will not now repeat the principles for which each case stands, but it must be recalled that the offending notice in Zhang was issued to a witness and not a defendant.

295. Before I turn to discuss the Defendant’s fundamental challenge, which is based on the principles in Zhang, as they might apply to a (likely) defendant, it is useful to “recap” here the principal elements of the chronology of relevant events recounted above:

Chronology

296. Zhang was argued on 19-20 November 2014, and decided on 6 February 2015. The relevant amendments to the EPA Act received assent on 19 November 2014, and commenced on 31 July 2015.

297. The prosecuting Council in the present matter received a complaint, about works on the Defendant’s site, on 23 September 2015, inspected the subject property on 30 November 2015, and commenced discussions and correspondence with the Defendant immediately.

298. The Council issued its s 119J notice to the Defendant on 15 December 2015, and correspondence ensued between Council and a solicitor then acting for the Defendant (Mantei).

299. In January 2016, K&C was engaged to assist the Defendant with his eco-tourist DA/SEE process.

300. The date upon which the Defendant responded in detail to the s 119J notice is not clear, but is said to be 9 May 2016.

301. The Defendant’s eco-tourist DA was lodged on 7 September 2016, and consent was granted 24 May 2017.

302. Council issued its “show cause” notice to the Defendant on 3 August 2017, and he responded on 14 August 2017.

303. These two Class 5 proceedings were commenced on 21 September 2017, and the subject subpoenas were issued on 7 February 2018.

304. K&C complied with its subpoena on 19 February 2018, but the NsOM to set both subpoenas aside were filed on 5 March 2018.

305. This hearing commenced on 6 April 2018 and concluded on 31 May 2018.

Discussion

306. It was clear to Council from 23 September 2015, and certainly from 30 November 2015, that offences might have been committed in developing the subject land, and that Council might consider bringing charges for the doing of the “offending” and “significant” development without consent.

307. In the email sent to him on 30 November 2015 (tab 7, fol 46), the Defendant was put on notice of Council investigations, the need to cease work, and to not use the premises for some purposes, and the requirement that he provide information. He was, it appears, not specifically warned of criminal proceedings.

308. By 15 December 2015, Henderson’s position had moved beyond issuing a s 121B order, or merely a PIN. His s 119J notice to the Defendant was issued on that date, because, even though he told the Court he may have ultimately decided on taking “no action”, Henderson said he “needed some kind of follow up”, or a “better picture” to inform a “final view” on taking some more serious action (i.e. in Class 4 or Class 5).

309. By 4 February 2016, the parties’ competing interpretations of the EPA Act and Zhang were already on the record between them, and Henderson admitted, in his evidence, that criminal proceedings were, at that date, “a possibility”.

310. By May 2016, the Defendant had responded, comprehensively, to the December 2015 s 119J notice, and further notices were issued (to others).

311. When the eco-tourist (or “validating”) DA was lodged on 7 September 2016, consideration of Council action (or no action) against the Defendant was deferred, but K&C’s SEE, submitted with the DA, acknowledged, on the Defendant/applicant’s behalf, that works had been undertaken on the site, without consent, during 2014-2015.

312. Sometime after the eco-tourist approval was granted on 24 May 2017, the Council issued (on 3 August 2017) its “show cause” notice, which clearly indicated that criminal proceedings were contemplated – the notice emphasised the absence of consent in 2014-15, in probable “breach” of the Act.

313. Between 14 August and 19 September 2017, Council (i.e. Henderson in consultation with his “bosses”) “decided” to bring these proceedings.

314. It was only at that late stage (in December 2017, or, indeed, February/April 2018) that Henderson researched the internet, media etc., whereas the Council had pursued the s 119J route in late 2015/early 2016, had commenced the prosecutions in September 2017, and had issued these subpoenas on 7 February 2018.

315. I find that Henderson, by his use of s 119J in 2015-2016, was seeking to clarify matters, which would later found “particulars of charge”, rather than to inform any decision by him as between Class 4 and Class 5 proceedings. I reject Council’s arguments to the contrary. While I found that Henderson to be a candid witness ([248]), I cannot accept his “reconstructive” evidence in this respect.

316. Henderson may well have had a “dual purpose”, but the Class 5 (i.e. criminal) option was a very “substantial”, if not his only, or his primary, purpose in using s 119J.

317. As the issuing party cannot satisfy the Court that the s 119J process was truly “legitimate”, in the Zhang sense, in all the circumstances of the subsequent prosecution, the Prosecutor cannot satisfy the Court that its forensic purpose in issuing the subpoenas was “legitimate”.

318. I also find that the authority of Zhang to that effect is not eroded by the subsequent legislative changes discussed above ([262]-[264]).

319. The Council appears to contend that changes were made to the EPA Act because of the decision in Zhang, but there is no evidence of that.

320. On this “statutory context” aspect of the matter, Mr Ireland’s submissions (set out at length, and with relevant emphasis, in [280] above) are, with respect, clearly to be preferred to those of Mr O’Gorman-Hughes ([252]-[268]).

321. I also accept the submissions made by Mr Ireland in respect of “ulterior purpose” (as discussed in Samrein and Desane). Those submissions include the following (Tp60, L40-p61, L6, and p61, LL13-23):

... gathering evidence for the purposes of the criminal proceedings ... was ... at least equally important as obtaining information for civil proceedings. There's absolutely no evidence that the notice would have been issued absent that ulterior purpose of being able to obtain the information for use in criminal proceedings and ... the failure to give an undertaking at an early point in time that material wouldn't be used in criminal proceedings is also highly indicative. ... Henderson[‘s] ... own original affidavit at para 6 referred to the offences that had apparently been committed. It's only his later affidavit of 1 May that reworks the situation and sets out [a] dual purpose position ...

...

.... A DA being approved, according to Mr Henderson's evidence, [is] a reason for commencing prosecution proceedings [but] ... there's an absence of documentation as to any recommendation that Mr Henderson gave that that would be the determinant as to whether class 4 proceedings or criminal proceedings were to be instituted by him, given his alleged decision making capacity for council.

322. I accept the correctness of Preston J’s decision in Zhang, and am very comfortable in following it in the present case, where the target of the statutory process is a likely defendant to criminal proceedings, and not merely a witness.

K: Conclusion and Orders

323. Zhang is compelling authority to find for the Defendant on these challenges, and orders should be made in accordance with the prayers for relief in each of the four NsOM.

324. In respect of ENP, the whole subpoena should be set aside, as no case has been made out for the Court to strike out only one of paragraphs 1 or 2 of it.

Costs

325. The Defendant also sought an order for his costs on the NsOM, but the Prosecutor submitted (par 35) that:

The Court does not have jurisdiction to make the order for costs sought by the defendant: s. 257C Criminal Procedure Act; Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204 at [75]-[104].

326. Apart from some preliminary submissions by Mr Ireland on the question of the costs thrown away, the question of costs on the NsOM has not been argued at all.

327. In those circumstances, and given that the Court is also unaware of the terms of any agreement reached between the parties on the question of the costs thrown away, I think it best that all questions of costs be formally reserved at this stage.

Orders

328. Accordingly, the Orders of the Court will be:

1. The subpoenas addressed to King & Campbell Pty Ltd and Eagle Nest Park Pty Ltd, in each of these two Class 5 proceedings, are set aside.

2. All questions of costs on the four Notices of Motion are reserved.

3. The exhibits are retained.

4. The folders of authorities are returned.

5. The two proceedings are stood over to the Registrar’s list on Thursday 26 July 2018 for further case management.

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Decision last updated: 16 July 2018