Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v TJ O'Brien Investments Pty Ltd

Case •

[2023] NSWLEC 132

•

30 November 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Keelendi Farms Pty Ltd; Secretary, Department of Planning and Environment v TJ O’Brien Investments Pty Ltd; Secretary, Department of Planning and Environment v Edenmore Farms Pty Ltd; Secretary, Department of Planning and Environment v O’Brien [2023] NSWLEC 132
Hearing dates: 7 June and 28 July 2023
Further written submissions 26 June and 11 July 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Jurisdiction:Class 5
Before: Pritchard J
Decision:

The Court makes the following orders:

(1) The defendants’ notice of motion filed 5 May 2023 is upheld to the extent that the following documents identified in the prosecutor’s index (annexed to the affidavit of Mr Adam Hutchings sworn 26 June 2023) at Annexure A to these reasons for decision be produced to the defendants pursuant to paragraph 2 of the defendants’ amended subpoena dated 16 November 2022:

(a) 6, 29, 30, 47, 48, 49, 52, 53, 54, 58, 64, 65, 69, 72, 73, 83, 92, 96, 97, 106, 107, 124, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 156, 157, 158, 159, 160, 176, 177, 178, 179, 180, 181, 182, 215 and 216.

(2) No order as to costs.

Catchwords:

SUBPOENA TO PRODUCE – prosecutor claim of legal professional privilege – Evidence Act 1995 (NSW) ss 118 and 119 – communications in relation to investigations of offences on subject land in earlier proceedings – communications between departmental officers – lawyer and client in governmental departments – the Court’s inspection of documents subject of privilege claim

Legislation Cited:

Biodiversity and Conservation Act 2016 (NSW) s 13.6

Evidence Act 1995 (NSW) ss 117, 118, 119, 131A, 133

Local Land Services Act 2013 (NSW) s 60

Cases Cited:

Archer Capital 4A Pty Ltd v Sage Group (No 2) [2013] FCA 1098

Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333

Barnes v Commission of Taxation [2007] FCAFC 88; (2007) 242 ALR 601

Director of Public Prosecutions (DPP) (NSW) v Stanizzo [2019] NSWCA 12

Grant v Downs (1976) 135 CLR 674 at 689; 11 ALR 577

Hancock v Rinehart [2016] NSWSC 12

Kennedy v Wallace (2004) 213 ALR 108

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704

Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37

Perazzoli v BankSA [2017] FCAFC 204

R v Petroulias(No 22) (2007) 213 FLR 293; [2007] NSWSC 692

Re Southland Coal Pty Ltd(receivers and managers appointed) (in liq) (2006) 203 FLR 1; 59 ACSR 87; [2006] NSWSC 899

Sydney Airport Corp Ltd v Singapore Airlines [2005] NSWCA 47

TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364

Victoria v Tabcorp Holdings Ltd [2013] VSCA 180

WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502 at 521; [2006] NSWCA 84

Texts Cited:

J D Heydon, Cross on Evidence (online ed, LexisNexis Australia)

Category:Procedural rulings
Parties: Secretary, Department of Planning and Environment (Prosecutor)
Keelendi Farms Pty Ltd (Defendant in matters 2022/178680 and 2022/178684)
TJ O’Brien Investments Pty Ltd (Defendant in matters 2022/178681 and 2022/178687)
Edenmore Farm Pty Ltd (Defendant in matters 2022/178682; 2022/178683; 2022/178685 and 2022/178686)
Timothy Justin O’Brien (Defendant in matters 2022/211961; 2022/211962; 2022/211963 and 2022/211964)
Representation: Counsel:
T Hammond (Prosecutor)
J Rogers (Defendants)
Solicitors:
Department of Planning and Environment (Prosecutor)
McGirr Lawyers (Defendants)
File Number(s): 2022/178680; 2022/178681; 2022/178682; 2022/178683; 2022/178684; 2022/178685; 2022/178686; 2022/178687; 2022/211961; 2022/211962; 2022/211963; 2022/211964
Publication restriction: Nil

JUDGMENT

Introduction

Procedural background

The hearing of the notice of motion on 7 June 2023

Supplementary submissions and evidence

Relevant statutory provisions and principles in relation to claims of privilege

The Court’s inspection of documents subject to a privilege claim

The prosecutor’s claim of privilege

Categories of documents

First step of the two-stage test: ss 118 and/or 119 of the Evidence Act

Second step of the two-stage test: disclosure of confidential communication

The defendants’ submissions in relation to the prosecutor’s claim of privilege

Consideration of privilege upon inspection of the disputed documents

Table 1: Correspondence between January 2020 and August 2020 in relation to the earlier proceedings

Table 2: Correspondence between January 2021 and June 2021 in relation to both the earlier proceedings and these Class 5 proceedings

Table 3: Correspondence on 10 June 2022 in relation to these Class 5 proceedings

Costs

Orders

Annexure A

JUDGMENT

Introduction

  1. By notice of motion filed 5 May 2023, the defendants, Keelendi Farms Pty Ltd, TJ O’Brien Investments Pty Ltd, Edenmore Farm Pty Ltd and Mr Timothy O’Brien (the defendants) seek production of and access to documents sought by its subpoena (as amended) dated 16 November 2022 (the amended subpoena) over which the prosecutor, Secretary, Department of Planning and Environment (the prosecutor) claims legal professional privilege (privilege). The defendants seek an order that “[a]ny document whereby legal professional privilege is claimed by the [p]rosecutor be dismissed” and that the “prosecutor [pay] the costs of the defendants”.

  2. On 26 May 2023, the prosecutor produced to the Court material pursuant to the amended subpoena in relation to which it maintains its claim of privilege. On 13 February 2023, the prosecutor claimed privilege over 248 documents. As at 26 June 2023, the prosecutor had reduced the number of documents over which it claims privilege to 158 (the disputed documents).

  3. The notice of motion was first heard on 7 June 2023. At the hearing on 7 June 2023, I considered there to be deficiencies in the prosecutor’s evidence, being the affidavit of Mr Adam Hutchings, principal legal officer employed by the prosecutor sworn 14 April 2023, and the prosecutor’s submissions seeking to make out its claim of privilege. Such deficiencies did not provide adequate assistance to the Court in determining the claim of privilege.

  4. The hearing of the notice of motion resumed on 28 July 2023 following the filing of supplementary submissions and evidence. At the resumed hearing, the prosecutor relied on an index identifying three categories of disputed documents. Those categories are set out at [29] below.

  5. I have reviewed the disputed documents in chambers, with the agreement of the parties, in order to scrutinise the prosecutor’s claim of privilege. I have determined that the prosecutor’s claim of privilege ought be upheld only in relation to some documents. I have set out the documents in relation to which I have upheld the claim of privilege and those in relation to which I have declined the claim by reference to each of the prosecutor’s three categories of documents at [73], [75] and [78] below.

Procedural background

  1. On 17 June 2022, the prosecutor filed 12 summonses charging the defendants with the following offences in relation to the clearing of native vegetation on two adjoining properties known as “Edenmore” and “Keelendi” in Pilliga, New South Wales (the properties):

  1. in proceedings 2022/178680 and 2022/178684, Keelendi Farms Pty Ltd is charged with two offences against s 60N of the Local Land Services Act 2013 (NSW) (Local Land Services Act) for clearing native vegetation in a regulated rural area during the periods of 13 February 2020 to 13 March 2020 and 13 March 2020 to 23 March 2020;

  2. in proceedings 2022/178681, 2022/178683, 2022/178685 and 2022/178687, T J O’Brien Investments Pty Ltd is charged with four offences against s 60N of the Local Land Services Act for clearing native vegetation in a regulated rural area during the periods of 13 February 2020 to 13 March 2020 and 13 March 2020 to 23 March 2020;

  3. in proceedings 2022/178682 and 2022/178686, Edenmore Farms Pty Ltd is charged with two offences against s 60N of the Local Land Services Act for clearing native vegetation in a regulated rural area during the periods of 13 February 2020 to 13 March 2020 and 13 March 2020 to 23 March 2020; and

  4. in proceedings 2022/211961, 2022/211962, 2022/211963 and 2022/211964, Timothy O’Brien is charged with four executive liability offences against s 13.6 of the Biodiversity and Conservation Act 2016 (NSW) (Biodiversity and Conservation Act) as director of T J O’Brien Investments Pty Ltd in relation to the four charges against that company for offences against s 60N of the Local Land Services Act.

  1. Prior to the commencement of these Class 5 proceedings, the prosecutor was also investigating alleged offences in relation to the clearing of native vegetation on several parcels of land within the properties in the period between 31 August 2017 and 30 September 2018. In March 2021, the prosecutor commenced proceedings in this Court in relation to those alleged offences, however in July 2022 the prosecutor withdrew the summonses in those proceedings (the earlier proceedings).

  2. On 7 October 2022, the defendants served on the prosecutor by email an unsealed copy of a subpoena. The document did not identify the correct defendants. On 11 October 2022, the prosecutor requested that the defendants rectify the error in the subpoena, and serve a sealed copy filed with the Court. On 12 October 2022, the defendants filed a corrected subpoena which consisted of 14 paragraphs describing the documents sought to be produced, 9 of which were documents created within the period between 1 January 2012 and 23 June 2020 (the first subpoena). On 24 October 2022, a sealed copy of the first subpoena was served on the prosecutor by email.

  3. On 4 November 2022, the prosecutor filed and served a notice of motion seeking the following orders:

1. That paragraphs 1, 2, 3, 6, 7, 10, 11 and 14 of the subpoena to the Secretary of the Department of Planning and Environment (the Subpoena) that was filed by the First Defendant on 12 October 2022 be set aside.

2. That the First Defendant pay the Prosecutor’s costs of and incidental to this Notice of Motion.

3. Such further order as the Court sees fit.

  1. On 16 November 2022, the solicitor for the defendants sent a letter to the prosecutor referring to the earlier proceedings in which he said the prosecutor had adduced “comprehensive evidence” from two officers employed by the Department of Planning and Environment (the department) in relation to their investigations of the alleged offences the subject of the earlier proceedings:

  1. Ms Christie Shrimpton, compliance and regulation officer; and

  2. Mr Mark Smith, senior investigator.

  1. In the letter of 16 November 2022, the defendant’s solicitor Mr Daniel McGirr said:

As such, given the evidence relied upon in the [earlier] proceedings, our client is attempting to ascertain the date on which evidence of the offence first came to the attention of an authorised officer.

In order to attempt to ascertain this question we must understand the investigation which took place during the course of the [earlier] proceedings in order to ascertain whether an authorised officer became aware of allegations of illegal clearing prior to 23 June 2020 – the date nominated by you in the Summons’ as the date on which evidence of the offence first came to the attention of an authorised officer.

  1. Mr McGirr said he was instructed to amend the first subpoena “as follows”, and then set out 21 paragraphs seeking to narrow the scope of the subpoena (such document referred to herein as the amended subpoena). Relevantly, paragraph 2 of the amended subpoena sought production of the following:

2. All correspondence between Christie Shrimpton and Mr Mark Smith in relation to any investigation of Edenmore, Keelendi or Cashell referred to by Mr Mark Smith in his affidavit dated 3 March 2021 at paragraph 8.

  1. On 24 November 2022, Mr Hutchings sent an email to Mr McGirr requesting that paragraph 2 of the amended subpoena be amended as it was “broad and oppressive given that it is not limited to a specific timeframe”.

  2. On 25 November 2022, the prosecutor filed an amended notice of motion seeking to set aside only paragraph 2 of the amended subpoena.

  3. On 30 November 2022, the Court (Duggan J) dismissed the prosecutor’s amended notice of motion “on the condition that paragraph [2] of the [amended] subpoena be amended”.

  4. On 23 December 2022, the prosecutor produced 101 documents in response to the amended subpoena and listed those documents in an index (tranche 1). On 8 February 2023, the prosecutor produced a further 57 documents which were also listed in an index (tranche 2).

  5. On 13 February 2023, the prosecutor provided to the defendants a document titled “Index for Amended Subpoena” identifying 248 documents that fell within the scope of the amended subpoena, but over which the prosecutor claimed privilege (the original index).

  6. On 24 March 2023, the Court (Pain J) directed that the prosecutor file an affidavit in support of its claim of privilege by 14 April 2023. An affidavit of Mr Hutchings for the prosecutor sworn 14 April 2023 was served on the defendants on 17 April 2023, and filed on 1 June 2023.

  7. On 14 April 2023, following a further review, the prosecutor produced a further 32 documents in relation to which it had withdrawn its claim of privilege (tranche 3). An updated index was annexed to Mr Hutchings’ affidavit sworn 14 April 2023 identifying the remaining 216 documents over which the prosecutor then maintained a claim of privilege (updated index). The updated index included information such as from whom and to whom the correspondence was sent, who was carbon-copied into the correspondence, the date on which the correspondence was sent, and a brief description of the purpose of the correspondence.

The hearing of the notice of motion on 7 June 2023

  1. At the hearing of the defendants’ notice of motion before me on 7 June 2023, the prosecutor said that it maintained a claim of privilege over 183 documents. In its written submissions, the prosecutor said that following a further review on 29 May 2023, the prosecutor had produced a further 33 documents to the defendants over which privilege was no longer claimed (tranche 4). The prosecutor read the affidavit of Mr Hutchings sworn 14 April 2023. The defendants took objection to the following paragraphs of Mr Hutchings’ affidavit:

  1. paragraph 12, on the basis of form (conclusion) and that the source of the updated index annexed to the affidavit and referred to in paragraph 12 was not established, it therefore being hearsay; and

  2. the fifth column of the updated index titled “Purpose of correspondence” on the ground that the column contained inadmissible hearsay evidence and was objectionable as to form (conclusion).

  1. In their objections, the defendants relied on s 75 of the Evidence Act 1995 (NSW) (Evidence Act) which allows hearsay evidence in interlocutory proceedings only in circumstances where “the party who adduces it also adduces evidence of its source”. The defendants submitted that there was “a very specific requirement that if the solicitor is giving [evidence] on information and belief, he identifies with…specificity the source of that information”. The defendants submitted that in the case of paragraph 12 of Mr Hutchings’ affidavit referring to the updated index, as well as the fifth column of the updated index indicating the “purpose of correspondence”, the source of the evidence was not identified and the evidence was therefore inadmissible hearsay evidence for the purpose of the interlocutory hearing.

  2. As noted above at [3], at the hearing of the motion on 7 June 2023 I considered there to be deficiencies in the prosecutor’s evidence and submissions. Such deficiencies did not provide adequate assistance to the Court in determining claims of privilege over some 183 documents. I referred to the decision of Pepper J in Environment Protection Authority v Queanbeyan City Council (No 2) [1] at [70] to [71] where her Honour referred to the decisions of R v Petroulias (No 22) (Petroulias) [2] and Barnes v Commission of Taxation (Barnes) [3] and said:

70.  To support a claim of client legal privilege what is required is exposure of the facts from which an informed decision can be made as to whether the claim for privilege is maintainable. This can include pointing to the nature of the documents or by evidence describing the circumstances in which they were bought into existence. The character of the documents the subject of the claim and the context of their relation may illuminate the purpose for which they were bought into existence (Petroulias (No 22) at [37]).

71.  The evidence required to prove a claim of privilege was summarised by the Full Federal Court in Barnes v Commission of Taxation [2007] FCAFC 88 ; (2007) 242 ALR 601; (cited with approval in Bailey v Department of Land and Water Conservation [2009] NSWCA 100 ; (2009) 74 NSWLR 333 at [38]), where it was held (at [18]):

18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus.

1. (2011) 189 LGERA 325; [2011] NSWLEC 159 (Pepper J).

2. (2007) 213 FLR 293; (2007) 176 A Crim R 309; [2007] NSWSC 692 (Johnson J).

3. (2007) 242 ALR 601; [2007] FCAFC 88 (Tamberlin, Stone and Siopsis JJ).

  1. I also referred to the decision of Sifris J in Tabcorp Holdings Ltd v Victoria (Tabcorp) [4] where his Honour said at [83], [84] and [94] (footnotes omitted):

    4. [2013] VSC 302 (Sifris J).

83. In Barnes v Commissioner of Taxation the Full Federal Court held that support for a claim of privilege must be “focused and specific”. Verbal formulae and bare conclusory assertions of purpose would not be sufficient to make out a claim for privilege.

84. In Bailey v Director-General, Department of Land and Water Conservation, the New South Wales Court of Appeal held that particularly where the State, or agencies of the State are involved, every effort should be made to ensure that evidence in support of a claim for privilege is in all respects “adequate and compelling”. The Court said:

Furthermore, and particularly where agencies of the state are litigants, every effort should be made not only to ensure that the rules are complied with, but also to ensure that evidence in support of a claim for privilege is in all respects adequate and compelling. It would be both inappropriate and risky for the inadequacies to which I have referred to be ignored simply upon the basis that the judge can inspect the documents and decide the issues for him or herself. Such a course involves expenditure of considerable time on the part of the judge which, although it cannot be totally avoided, may well be able to be reduced where, as was said in Barnes, “focussed and specific evidence has been filed in support of a claim for client legal privilege.

…

94. In my view, the State has failed to make out a sufficient evidential foundation for its claim of privilege. The evidence is not sufficiently “focused and specific”, and directed to the requirements of legal advice and the dominant purpose of such advice. The descriptions provided do not satisfy this standard. They are inadequate in establishing that the Challenged Documents were for the dominant purpose of ARH’s provision of legal advice to the State, and therefore do not satisfy the requirements of client legal privilege under s 118 (a), (b) or (c). Some of the communications included in the Challenged Documents relate to agreements to which the State was not party, and cannot be understood to be directed at providing legal advice to the State. Even on Mr Tabe’s evidence, the Challenged Documents include communications which he did not believe to be legal advice. The position is not improved by the general evidence contained in the affidavits in support.

  1. In light of the above authorities, at the hearing on 7 June 2023, I said to the parties:

HER HONOUR: … I will hear from you, but it would appear to me that, in addition to the hearsay objection, which is taken to column 5 in annexure E, what one has there is ‑ I'm not even sure it goes as far as verbal formulae and bare conclusory assertions of purpose, applying the authorities, as I presently see them, column 5 in annexure E doesn't even rise that high.

  1. Accordingly, I proposed the following course:

HER HONOUR: Mr Rogers, what I'm proposing is ‑ I note the notation, at two previous directions hearings, that there be no further evidence.  I would propose ‑ this is subject to the question of costs, of course, which you'll no doubt address me ‑ that the prosecutor have the opportunity to put on a short affidavit seeking to address the deficiencies in Mr Hutchings' present affidavit, and the prosecutor to put on short additional submissions and a table which seek to address the matters identified in the authorities concerning the need for focused and specific evidence, in order to grant a claim for privilege ‑ "verbal formulae, bare conclusory assertions are not sufficient, assisted by evidence of the thought process behind the nature and purpose of advice being sought in respect of each particular document", et cetera.

…

HER HONOUR: Mr Rogers, I understand your clients' dissatisfaction with the Court granting leave to the prosecutor to put on some evidence to rectify the deficiencies in the affidavit and to put on further submissions to assist the Court.  It might not be much of a consolation, but I propose to order the prosecutor to pay the costs of today's hearing… 

  1. At the conclusion of the hearing on 7 June 2023, I made the following orders:

1. Prosecutor to file and serve further evidence and submissions in relation to its claim of legal professional privilege by close of business 21 June 2023.

2. Defendants to file and serve any further submissions and any evidence upon which it seeks to rely by close of business 7 July 2023.

3. Prosecutor to pay defendants’ costs in relation to the preparation for and hearing of the notice of motion filed 5 May 2023 in the period 1 June 2023 to 7 June 2023 as agreed or assessed.

4. Defendants to notify the Court and prosecutor by close of business 7 July 2023 whether the defendants require a further hearing or are content for the Court to determine the motion on the papers.

5. Liberty to restore at 3 days’ notice.

Supplementary submissions and evidence

  1. On 26 June 2023, the prosecutor filed supplementary submissions and an affidavit of Mr Hutchings sworn 26 June 2023. Annexed to Mr Hutchings’ affidavit was a document titled “Final Updated LPP Index” identifying the 216 documents in the updated index, and the status of each document in relation to which the prosecutor maintained or had withdrawn its claim of privilege (the final index). The final index provides in more detail the basis upon which the prosecutor makes its claim, including the applicable section of the Evidence Act. The final index is annexed to these reasons for decision as Annexure A.

  2. In his affidavit sworn 26 June 2023, Mr Hutchings said that he had carriage of the earlier proceedings from March 2021, and in that capacity was aware of the investigative history as well as the commencement and subsequent withdrawal of the earlier proceedings in this Court. Mr Hutchings said that he used his “experience and knowledge of the matters involving the defendants to determine whether each document in the [final index] was either one of, or a combination of” a confidential communication within the meaning of ss 118 and 119 of the Evidence Act in relation to either the earlier or these Class 5 proceedings.

  3. Mr Hutchings categorised the disputed documents in the following three tables:

  1. 148 documents comprising correspondence in the period January 2020 to August 2020 between the prosecutor’s legal representatives and departmental clients in relation to investigations leading to the earlier proceedings (Table 1);

  2. 8 documents comprising correspondence in the period January 2021 to June 2021 between the prosecutor’s legal representatives and departmental clients in relation to commencement of the earlier proceedings or investigation of the clearing subject of the present proceedings (Table 2); and

  3. 2 documents comprising correspondence on 10 June 2022 between the prosecutor’s legal representatives and departmental clients (Table 3).

  1. Accordingly, as at 26 June 2023, the prosecutor maintained its claim of privilege over 158 documents.

  2. In its supplementary submissions filed on 26 June 2023, the prosecutor submitted that it did not object to the Court inspecting the disputed documents “for purposes of answering any questions that may arise”, and accordingly invited the Court to exercise its discretion pursuant to s 133 of the Evidence Act to inspect the documents.

  3. On 11 July 2023, the defendants filed supplementary submissions. The defendants submitted as follows:

6. Whether the Court wishes to inspect the balance of the documents is a question for it. [The defendants have] not been able to ascertain whether it is acceptable practice for the Court to undertake that exercise in chambers. If the Court is minded to inspect the documents, it may be safer to do so in open Court.

7. The defendants are willing to appear before the Court for that purpose, or to supplement these submissions, should the Court consider that will be of assistance.

  1. Upon receiving the parties’ supplementary submissions, I relisted the matter for hearing on 28 July 2023. On that occasion, I indicated to the parties that in the exercise of my discretion pursuant to s 133 of the Evidence Act, I proposed to undertake a high level review of the disputed documents in chambers. This course was not opposed.

Relevant statutory provisions and principles in relation to claims of privilege

  1. The provisions in Part 3.10 of the Evidence Act (ss 117 to 134), with the exception of ss 123 and 128, apply to the Court’s determination of an objection in circumstances where “a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents…” and “the person objects to giving that information or providing that document”. [5] A “disclosure requirement” within the meaning of s 131A includes “a summons or subpoena to produce documents or give evidence”.

    5. Evidence Act s 131A.

  2. The expressions “client”, “confidential communication”, “confidential document” and “lawyer” are defined as follows:

117 Definitions

(1) In this Division—

client includes the following—

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is—

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,

(e) if a client has died—a personal representative of the client,

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

confidential communication means a communication made in such circumstances that, when it was made—

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared—

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them…

  1. Section 118 of the Evidence Act provides as follows in relation to legal advice:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

  1. Section 119 provides as follows in relation to litigation:

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

  1. In Re Southland Coal Pty Ltd (receivers & managers appointed) (in liq) (Re Southland Coal), [6] Austin J at [14] set out the following “uncontested principles” in relation to assessing a claim of privilege:

14. … (b) Two-stage process - Assessing a claim for privilege under s 118 or s 119 is a two-stage process. The first step is for the court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s 118 or s 119 or both sections. The second step is for the court to be satisfied that the production of the document or the unredacted part of it would result in the disclosure of a confidential communication or the confidential contents of a document.

(c) Onus - The party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 337; ASIC v Rich [2004] NSWSC 1089 at [2]; In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 at [24]). The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S (1991) 100 ALR 151 at 159). The facts are to be proved on the balance of probabilities (Evidence Act, s 142).

(d) Legal advice - Section 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, “legal advice” is understood in a pragmatic sense. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [77] to [78], McColl JA quoted, evidently with approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317, at 330, that “legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context”. This assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such…

6. (2006) 203 FLR 1; 59 ACSR 87; [2006] NSWSC 899 (Austin J).

  1. It was uncontroversial that the onus of establishing a claim of privilege falls on the party claiming the privilege. The party must establish the purpose for which a document is said to have come into existence. This may be done by way of a schedule providing “a brief description of the nature of each document, its date, provenance and the basis of the privilege claim…sufficient to permit a meaningful testing of the claims to privilege”. [7]

    7. Perazzoli v BankSA [2017] FCAFC 204 at [10] (Perram, Foster and Murphy JJ).

  2. Although the test of “dominant purpose” within the meaning of ss 118 and 119 is an objective one, “the subjective intention of the person responsible for the document coming into existence [is] entitled to weight”. [8]

    8. Sydney Airport Corp Ltd v Singapore Airlines [2005] NSWCA 47 at [6] (Spigelman CJ, Sheller JA and Campbell AJA agreeing).

  3. In relation to in-house counsel, a person can receive both legal advice and commercial or other non-legal advice from in-house counsel, in which case “the former will be privileged, the latter not”. [9] It must also be established that the in-house counsel was providing legal advice in his or her professional capacity as a lawyer: [10]

…A communication between a lawyer and his or her employer is unlikely to satisfy the dominant purpose test if the lawyer was not employed as a lawyer (that is, the relationship between the lawyer and the employer was not professional) or the lawyer was not consulted in his or her professional capacity as a lawyer (for example, if they were consulted to provide commercial advice, or provide an administrative service, or were consulted as a partner or officer of the firm or company, not as a lawyer).

9. Kennedy v Wallace (2004) 142 FCR 185; (2004) 213 ALR 108; [2004] FCAFC 337 at [157] (Allsop J).

10. Archer Capital 4A Pty Ltd v Sage Group plc (No 2) (2013) 306 ALR 384; [2013] FCA 1098 at [72] (Wigney J).

  1. In relation to claims of privilege involving “third parties”, that is where someone is neither a lawyer nor client within the meaning of the Evidence Act, a privilege claim can only be maintained on the “litigation” ground in s 119. The reference to “another person” in s 119(a), which does not appear in s 118, indicates that communications between third parties and the lawyer or the client are only protected where the dominant purpose is the provision of professional legal services in “litigation” as distinct from “legal advice”. [11]

    11. J D Heydon, Cross on Evidence (online ed, LexisNexis Australia) at [25300].

  2. In relation to email correspondence involving multiple addressees, the England and Wales Court of Appeal (Civil Division) has held the following approach to be appropriate in determining claims of privilege: [12]

(ii) In respect of a single, multi-addressee e-mail sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. In this exercise, the wide scope of “legal advice” (including the giving of advice in a commercial context through a lawyer’s eyes) and the concept of “continuum of communications” must be taken fully into account. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer then, subject to the principle set out in Three Rivers (No 5) [2003] QB 1556 (see paras 47 and following above), that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

(iii) The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee. Again, whilst the dominant purpose test applies, given the wide scope of “legal advice” and “continuum of communications”, the court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal (rather than non-legal) advice. It is difficult to conceive of many circumstances in which such an exercise could be other than arid and unnecessary.

12. R (Jetz.com Ltd) v Civil Aviation Authority [2020] 2 WLR 1215; [2020] EWCA Civ 35 at [100] (Hickinbottom LJ, Patten and Peter Jackson LJJ agreeing), adopted in TEC Hedland Pty Ltd v Pilbara Infrastructure Pty Ltd [2020] WASC 364 at [26]–[29] (Hill J).

  1. In Mann v Carnell,[13] Gleeson CJ, Gaudron, Gummow and Callinan JJ held that privilege may be waived by the client in circumstances where there is “inconsistency between the conduct of the client and maintenance of the confidentiality”. And in Osland v Secretary, Department of Justice,[14] Gleeson CJ, Gummow, Heydon and Kiefel JJ said that judgment of the conduct of the client “is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances”.

    13. (1999) 201 CLR 1; [1999] HCA 66 at [28] (Gleeson CJ, Gaudron, Gummow and Callinan JJ) cited in Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 (Kenquist Nominees) at [21]-[22] (Thawley J).

    14. (2008) 234 CLR 275; [2008] HCA 37 at [45] (Gleeson CJ, Gummow, Heydon and Kiefel JJ) cited in Kenquist Nominees at [23] (Thawley J).

The Court’s inspection of documents subject to a privilege claim

  1. The court has power to inspect documents to determine a claim of privilege. [15] Section 133 of the Evidence Act provides:

133   Court may inspect etc documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

15. Re Southland Coal at [14](k) (Austin J); Petroulias at [38] (Johnson J); see also s 133 of the Evidence Act.

  1. The power of the court to inspect documents pursuant to s 133 is a discretionary one. If the evidence is not sufficient to establish the claim, the Court is not obliged to examine the documents. In Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd (Mortgage Results), [16] Derham AsJ held at [24] (footnotes omitted) (emphasis added):

24. In these circumstances, I am faced with what might appear to be a conflict of authority. I am, of course, bound by the decisions of Sifris J and the Court of Appeal in the Tabcorp decisions. However, the Tabcorp decisions are, in my opinion, authority for the view that where the evidence in support of the claimed privilege is insufficient, then, depending on the circumstances, it may be an acceptable exercise of the discretion under s 133 to refuse to inspect the disputed documents because to do so would amount to the party claiming privilege delegating to the Court the task of establishing that privilege, or the Court filling gaps in the evidence in that party’s case.

16. [2017] VSC 704 (Derham AsJ).

  1. In Hancock v Rinehart,[17] Brereton J said in relation to the court’s power to inspect documents at [31] (footnotes omitted) (emphasis added):

31. The preferable explanation of the court’s power to inspect the documents is that it exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling a claim to be scrutinised and tested. This view of the power is derived from the historical evolution of the means of scrutinising a claim in the context where the oath of the claimant was once regarded as conclusive. As Giles J said of an equivalent rule in Fruehauf, it “may be seen as a limited relaxation of the general rule, or recognition of a limited common law exception, and of significance because the ways of challenging a claim to privilege are otherwise confirmed”. It is reinforced by the manner in which the power is expressed, as one to compel production for the purpose of ruling on the objection — that is, to intrude on the privilege for a limited purpose. Moreover, it has often been observed that a party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason. While those comments have been made in response to requests by applicants for production asking the court to go behind the affidavit evidence in support of the claim and inspect the documents, they apply a fortiori where the claimant, having adduced insufficient evidence otherwise to sustain the claim, requests the court to inspect the documents (to the exclusion of the applicant).

17. [2016] NSWSC 12 (Brereton J) (Hancock v Rinehart).

  1. I have determined to exercise my discretion to undertake an inspection of the disputed documents at a high level in order for the prosecutor’s claim of privilege to be “scrutinised and tested”. [18]

The prosecutor’s claim of privilege

18. Hancock v Rinehart at [31] (Brereton J).

  1. The prosecutor submitted that the lawyers in the legal services branch of the department provide legal advice to clients who also work in the department. Mr Hutchings deposed to the relationship between the legal services branch and the clients in the department. He identified eight lawyers in the legal services branch who were a party to some of the communications over which privilege is claimed. These were, in the prosecutor’s submission, all persons employed to provide legal services. The prosecutor identified the staff within the broader department who engage those eight lawyers to provide legal services within the definition of “clients” in s 117 of the Evidence Act.

  2. In his affidavit of 14 April 2023, Mr Hutchings said that he “would expect all correspondence included in the Updated LPP Index that contain or refer to legal advice to carry an express or implied obligation not to disclose its contents”.

  3. The prosecutor relied on the decision of Director of Public Prosecutions (DPP) (NSW) v Stanizzo (Stanizzo) [19] where Basten and Payne JJA and Sackville AJA held at [25] to [27] that the Director of Public Prosecutions (DPP) was the “client” for the purpose of s 117 of the Evidence Act, and that in conducting conferences with witnesses and preparing notes of the conferences, both the Crown Prosecutor and a solicitor employed by the office of the DPP were persons providing legal services to the DPP as the client. The prosecutor submitted that a similar relationship exists here, and that it is “arguably more clear-cut” than the lawyer-client relationship in Stanizzo.

    19. (2019) 367 ALR 256; [2019] NSWCA 12 at [25]-[27] (Basten, Payne JJA and Sackville AJA).

  4. The prosecutor submitted that Mr Hutchings’ affidavit of 26 June 2023 “sets out a more specific description of the nature of the claim made in relation to each document by reference to the relevant sections of the Evidence Act under which the claim is based and a detailed description of the document and the dominant purpose of its creation”. Mr Hutchings relied on his experience and knowledge as solicitor with carriage of these proceedings and the earlier proceedings since January of 2021. He said he was familiar with the earlier proceedings and the context in which emails between departmental lawyers and clients were made. The prosecutor submitted that Mr Hutchings’ knowledge of and familiarity with the matters under investigation provided him with the ability to apply “considered judgment” to the task of reviewing the disputed documents.

  5. Mr Hutchings deposed that Ms Georgia Shaw, senior legal officer employed by the department, conducted an initial review of the documents the subject of the amended subpoena under the direction of Mr Hutchings. Mr Hutchings satisfied himself that those involved in the initial review were members of the legal services branch of the department.

  6. Mr Hutchings deposed that following orders of Pain J on 24 March 2023, he undertook a further review of the documents over which the prosecutor claimed privilege, working collaboratively with Ms Dominique Salvestrin, senior legal officer employed by the department. Mr Hutchings considered the updated index of documents created by Ms Salvestrin, and cross-referenced each entry with the corresponding document to satisfy himself that it contained confidential communication between departmental lawyers and clients. Between 14 June 2023 and 23 June 2023, with the assistance of Ms Salvestrin, Mr Hutchings prepared the final index.

  7. In relation to Mr Hutchings’ preparation of the final index, the prosecutor submitted as follows:

  1. Mr Hutchings reviewed each document and considered whether it contained confidential communication and the purpose of the document’s creation. He drew on his experience and knowledge of the matters in applying his “thought processes” to determine whether each document was a confidential communication falling under ss 118 or 119 of the Evidence Act.

  2. The final column of the final index, “basis of claim for privilege” established “a thorough and methodical approach taken by Mr Hutchings in considering whether a claim of privilege applied to each document.” He characterised the basis of the claim by referring to the dominant purpose of the document and the topic to which it relates.

  3. Where appropriate, Mr Hutchings identified only parts of documents over which a claim was maintained. His evidence was “focused and specific”. [20] The only third parties copied into correspondence were other lawyers or clients within the department, “thereby maintaining confidentiality” (noting that a description of each person’s role was provided at the end of the final index).

  4. Mr Hutchings reviewed “each and every document” and “provided a description which, in his judgment, base[d] a claim for privilege”. He was “entitled to provide such an opinion” because it was his “state of mind that ground[ed] the claim”.

  5. The prosecutor, through Mr Hutchings who “applied logic and knowledge within the context of the particular matter”, gave “adequate and compelling” reasons why the claim of privilege is made out. [21]

    20. Barnes at [18] (Tamberlin, Stone and Siopsis JJ).

    21. Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [45] (Tobias JA, Allsop P and Hodgson JA agreeing).

Categories of documents

  1. Mr Hutchings grouped the documents into three broad categories. The prosecutor submitted that:

  1. The documents in Table 1 were created between January and August 2020 at a time when the defendants were being investigated for the earlier proceedings. The description of these documents in the final index adequately described each document and it was “transparent that they were created for the purposes of obtaining or providing legal advice” (s 118), with the exception of documents numbered 20, 55-58, 101-105, 145, 146, 162, 209 which fell under both ss 118 and 119. Documents 161, 198, 199 were created for the dominant purpose of providing the client with professional legal advice in relation to anticipated proceedings (s 119).

  2. The documents in Table 2 were created between January and June 2021 in relation to both the earlier proceedings and these Class 5 proceedings. There was a mixture of documents in which legal advice was sought or given (s 118), and other documents that were created in anticipation of these proceedings (119). Some documents fell under both ss 118 and 119, such as documents numbered 78, 79, 90, 95, 129. The penultimate column “Evidence Act” and final column “basis of claim for privilege” provided a sufficient description of each document and why Mr Hutchings considered them to be privileged.

  3. The documents in Table 3 comprised only two documents which fell under s 118.

  1. The prosecutor submitted that the vast majority of the disputed documents is email correspondence between departmental legal officers (lawyers) and investigation officers (clients) in which legal advice was being sought by the client and/or provided by the lawyer.

First step of the two-stage test: ss 118 and/or 119 of the Evidence Act

  1. In relation to the first of the two steps of the “two-stage test”, [22] the prosecutor submitted that the Court would be satisfied that the first step is met. In its submissions of 31 May 2023, the prosecutor submitted that the disputed documents fall either under ss 118 or 119 “or both”. Upon the Court’s invitation to provide supplementary evidence and submissions, Mr Hutchings’ final index indicated with greater specificity whether the prosecutor presses its claim of privilege under s 118 or 119, or both, in relation to each of the documents.

    22. Re Southland Coal at [14(b)] (Austin J).

  2. The prosecutor submitted that some of the correspondence between two or more clients themselves, that is, between investigation officers, would satisfy s 119 because they are confidential communications between the client and another person made for the dominant purpose of the client being provided with professional legal services relating to an anticipated Australian proceeding in which the client is or may be, a party. The prosecutor submitted that the exchanges between investigation officers which refer to legal advice to be given, or already given, were made in anticipation of proceedings being commenced.

Second step of the two-stage test: disclosure of confidential communication

  1. In relation to the second step of the two-stage test (namely, that the Court is satisfied that the production of the disputed documents would result in the disclosure of a confidential communication or the confidential contents of a document), the prosecutor submitted that the supplementary evidence before the Court by way of Mr Hutchings’ 26 June 2023 affidavit and the final index is “compelling”. Whilst some of the documents could be redacted or have parts excised from them, most contain email chains that refer to legal advice, either directly or indirectly. Requiring production of those documents would result in disclosure of confidential communications or the contents of confidential documents.

The defendants’ submissions in relation to the prosecutor’s claim of privilege

  1. In their submissions dated 5 June 2023, the defendants submitted that the Court could not be satisfied that the claim of privilege was made out even on a on a prima facie basis on the basis of Mr Hutchings’ earlier affidavit sworn 14 April 2023, where:

  1. Mr Hutchings did not state that he had inspected each document the subject of the claim.

  2. Mr Hutchings did not claim that he generated the updated index.

  3. The person or persons who inspected the documents, and considered the claim, were not identified. In the absence of that evidence, “the description of the purpose in relation to each document must come under some scrutiny”.

  1. Having regard to those facts, the defendants submitted that it was not incumbent on the Court to inspect the documents “so as to make out” the prosecutor’s privilege claim. However, even if the Court were satisfied that the claim was “made out to the initial level”, the Court would not prevent production of the documents in circumstances where:

  1. The basis on which privilege is claimed (that is, legal advice or litigation privilege) had not been identified with sufficient clarity to enable those claims to be properly tested.

  2. Mr Hutchings’ affidavit of 14 April 2023 did not identify which of the documents constitute correspondence wherein “the last email within an identified email chain was not between a lawyer and a client”.

  3. To the extent that Mr Hutchings’ 14 April 2023 affidavit “seems to infer” that a third party was copied into a communication or document, there was no identification as to whether the claim related to advice or legal services. The affidavit “seem[ed] to claim [privilege] on both grounds”, being ss 118 and 119 of the Evidence Act.

  1. In supplementary submissions dated 11 July 2023, following the service of the prosecutor’s supplementary evidence and submissions, the defendants maintained the position that the prosecutor has not made out its claim of privilege. With respect to specific documents, the defendants submitted that the claim of privilege had not been established in respect of the following documents identified in the final index:

  1. Documents 64 to 65 and 92 where the evidence as to emails between Ms Shrimpton, the department’s compliance and regulation officer, and Mr Smith, the department’s senior investigator (and the authorised officer with carriage of the investigation) is “somewhat ambiguous”. The defendants submitted this was apparent in circumstances where:

  1. the “To/From” and “cc” columns in the final index do not identify a legal practitioner within the meaning of the Evidence Act. In relation to those documents, the prosecutor claimed privilege pursuant to s 118 which “does not entitle a claim” to be made in respect of communications between non-lawyers; and

  2. the “basis of claim for privilege” column in the final index stated that Ms Melis Erzin, a lawyer at the department, was privy to the communications. However, having regard to the description of the communications, which “seemingly refer[red] to factual matters in relation to the investigation, the Court would not be satisfied that the claims for privilege are made out”.

  1. Documents 92, 124 and 145 where the evidence does not establish “the purpose for each addressee in the email chain”. In particular:

  1. in relation to document 92, the identity of Mr Evans is not established on the evidence, “let alone the purpose for which he was sent the document or communication”;

  2. in relation to document 124, there were numerous persons copied into that communication, and no explanation provided “as to the purpose for each addressee”; and

  3. in relation to document 145, the purpose for which the document was sent to Mr Campbell (who is not a lawyer) was similarly not established.

Consideration of privilege upon inspection of the disputed documents

  1. I am satisfied that Mr Hutchings’ supplementary affidavit sworn 26 June 2023 addresses the deficiencies raised by the defendants in relation to Mr Hutchings’ earlier affidavit of 14 April 2023.

  2. In undertaking a high-level inspection of the disputed documents, the Court has scrutinised and tested the prosecutor’s claims of privilege as identified in the final index, rather than undertaking “the task of establishing that privilege” or “filling gaps in the evidence”. [23]

    23. Mortgage Results at [24] (Derham AsJ).

  3. It became apparent to the Court upon its review of the disputed documents that there is significant duplication of documents in relation to which the prosecutor maintains its claim of privilege, despite multiple reviews of the documents in dispute by the prosecutor and categorisation of the documents at the request of the Court.

  4. I accept the prosecutor’s submission that the departmental compliance officers and investigators, Ms Shrimpton and Mr Smith, are “clients”, and that lawyers in the department’s legal services branch, such as Ms Melis Erzin, are “lawyers” within the meaning of s 117 of the Evidence Act.

  5. My consideration of the three categories of the disputed documents is as follows.

Table 1: Correspondence between January 2020 and August 2020 in relation to the earlier proceedings

  1. It is apparent from the Court’s inspection of the disputed documents that a large number of the communications in Table 1 is between departmental compliance officers and investigators, namely Ms Shrimpton and Mr Smith. The officers are identified in paragraph 2 of the amended subpoena. The email communications are not addressed to Ms Erzin or any other lawyer of the prosecutor. Many email chains in respect of which a claim of privilege is made contain only one communication in which legal advice is requested or provided. It is regrettable that the task of scrutinising these at times lengthy email chains has been delegated to the Court, rather than the prosecutor undertaking a process of redacting specific emails over which it claimed privilege.

  2. In relation to email chains which consist of earlier communications involving a request or provision of legal advice from Ms Erzin or another lawyer, the claim of privilege is upheld.

  3. Where the prosecutor claims privilege over email communications pursuant to s 118, those claims are refused in relation to email chains exclusively between departmental compliance officers and investigators. Similarly, where the prosecutor has claimed privilege pursuant to s 118 in relation to communications concerning instructions to experts, in the absence of any reliance on s 119, those claims are refused. Again, in so ruling, the Court declines to undertake the task of “establishing” the prosecutor’s claim of privilege or “filling gaps in the evidence”.

  4. In relation to the communications in Table 1 over which a claim of privilege is maintained pursuant to s 119, I am satisfied that the dominant purpose of a number of those communications was for departmental compliance officers and investigators to be provided with professional legal services relating to an anticipated Australian proceeding in which the department, as prosecutor, would be a party.

  5. Accordingly, my rulings in relation to the documents in Table 1 are as follows:

Reference to claim in final index

Ruling

Applicable section of the Evidence Act

1.

Privilege claim upheld

118

2.

Privilege claim upheld

118

3.

Privilege claim upheld

118

4.

Privilege claim upheld

118

6.

Privilege claim declined

7.

Privilege claim upheld

118

8.

Privilege claim upheld

118

9.

Privilege claim upheld

118

11.

Privilege claim upheld

118

12.

Privilege claim upheld

118

13.

Privilege claim upheld

118

14.

Privilege claim upheld

118

16.

Privilege claim upheld

118

18.

Privilege claim upheld

118

19.

Privilege claim upheld

118

20.

Privilege claim upheld

118 and 119

29.

Privilege claim declined

30.

Privilege claim declined

33.

Privilege claim upheld

118

34.

Privilege claim upheld

118

42.

Privilege claim upheld

118

47.

Privilege claim declined

48.

Privilege claim declined

49.

Privilege claim declined

51.

Privilege claim upheld

118

52.

Privilege claim declined

53.

Privilege claim declined

54.

Privilege claim declined

55.

Privilege claim upheld

119

56.

Privilege claim upheld

119

57.

Privilege claim upheld

119

58.

Privilege claim declined

60.

Privilege claim upheld

118

61.

Privilege claim upheld

118

62.

Privilege claim upheld

118

63.

Privilege claim upheld

118

64.

Privilege claim declined

65.

Privilege claim declined

66.

Privilege claim upheld

118

67.

Privilege claim upheld

118

68.

Privilege claim upheld

118

69.

Privilege claim declined

70.

Privilege claim upheld

118

71.

Privilege claim upheld

118

72.

Privilege claim declined

73.

Privilege claim declined

75.

Privilege claim upheld

118

80.

Privilege claim upheld

118

81.

Privilege claim upheld

118

82.

Privilege claim upheld

118

92.

Privilege claim declined

93.

Privilege claim upheld

118

94.

Privilege claim upheld

118

96.

Privilege claim declined

97.

Privilege claim declined

98.

Privilege claim upheld

118

99.

Privilege claim upheld

118

100.

Privilege claim upheld

118

101.

Privilege claim upheld

119

102.

Privilege claim upheld

119

103.

Privilege claim upheld

119

104.

Privilege claim upheld

119

105.

Privilege claim upheld

119

106.

Privilege claim declined

107.

Privilege claim declined

108.

Privilege claim upheld

118

109.

Privilege claim upheld

118

110.

Privilege claim upheld

118

111.

Privilege claim upheld

118

112.

Privilege claim upheld

118

113.

Privilege claim upheld

118

114.

Privilege claim upheld

118

115.

Privilege claim upheld

118

116.

Privilege claim upheld

118

117.

Privilege claim upheld

118

118.

Privilege claim upheld

118

124.

Privilege claim declined

128.

Privilege claim upheld

118

130.

Privilege claim upheld

118

133.

Privilege claim declined

134.

Privilege claim declined

135.

Privilege claim declined

136.

Privilege claim declined

137.

Privilege claim declined

138.

Privilege claim declined

139.

Privilege claim declined

140.

Privilege claim declined

141.

Privilege claim declined

142.

Privilege claim declined

143.

Privilege claim declined

144.

Privilege claim declined

145.

Privilege claim upheld

119

146.

Privilege claim upheld

119

147.

Privilege claim upheld

118

148.

Privilege claim upheld

118

149.

Privilege claim upheld

118

150.

Privilege claim upheld

118

151.

Privilege claim upheld

118

152.

Privilege claim upheld

118

153.

Privilege claim upheld

118

154.

Privilege claim upheld

118

155.

Privilege claim upheld

118

156.

Privilege claim declined

157.

Privilege claim declined

158.

Privilege claim declined

159.

Privilege claim declined

160.

Privilege claim declined

161.

Privilege claim upheld

119

162.

Privilege claim upheld

119

166.

Privilege claim upheld

118

167.

Privilege claim upheld

118

168.

Privilege claim upheld

118

169.

Privilege claim upheld

118

170.

Privilege claim upheld

118

171.

Privilege claim upheld

118

172.

Privilege claim upheld

118

173.

Privilege claim upheld

118

174.

Privilege claim upheld

118

176.

Privilege claim declined

177.

Privilege claim declined

178.

Privilege claim declined

179.

Privilege claim declined

180.

Privilege claim declined

181.

Privilege claim declined

182.

Privilege claim declined

184.

Privilege claim upheld

118

185.

Privilege claim upheld

118

186.

Privilege claim upheld

118

187.

Privilege claim upheld

118

188.

Privilege claim upheld

118

189.

Privilege claim upheld

118

190.

Privilege claim upheld

118

196.

Privilege claim upheld

118

198.

Privilege claim upheld

119

199.

Privilege claim upheld

119

200.

Privilege claim upheld

118

201.

Privilege claim upheld

118

202.

Privilege claim upheld

118

203.

Privilege claim upheld

118

204.

Privilege claim upheld

118

205.

Privilege claim upheld

118

206.

Privilege claim upheld

118

207.

Privilege claim upheld

118

209.

Privilege claim upheld

119

212.

Privilege claim upheld

118

213.

Privilege claim upheld

118

214.

Privilege claim upheld

118

216.

Privilege claim declined

Table 2: Correspondence between January 2021 and June 2021 in relation to both the earlier proceedings and these Class 5 proceedings

  1. The documents in Table 2 are communications between departmental investigators and lawyers for the prosecutor, including Mr Hutchings, Ms Shaw and Ms Erzin. I am satisfied that the dominant purpose of the communications in Table 2 was for the provision of legal advice: s 118. The nature of the advice described in the final index sufficiently reflects the content of the communications.

  2. Accordingly, my rulings in relation to the documents in Table 2 are as follows:

Document reference in final index

Ruling

Applicable section of the Evidence Act

78.

Privilege claim upheld

118

79.

Privilege claim upheld

118

90.

Privilege claim upheld

118

95.

Privilege claim upheld

118

129.

Privilege claim upheld

119

131.

Privilege claim upheld

118

175.

Privilege claim upheld

118

197.

Privilege claim upheld

118

Table 3: Correspondence on 10 June 2022 in relation to these Class 5 proceedings

  1. The two items in Table 3 in relation to which a claim of privilege is pressed by the prosecutor concern the provision of a “field exhibit log” and “exhibit book” from a departmental investigator, Mr Smith, to the department’s lawyers, including Mr Hutchings. One of the communications attaches the “field exhibit log” and “exhibit book” documents.

  2. In relation to the two items in Table 3, I find that the dominant purpose of these communications and documents was not for the receipt or provision of legal advice pursuant to s 118 of the Evidence Act.

  3. My rulings in relation to the documents in Table 3 are as follows.

Document reference in final index

Ruling

Applicable section of the Evidence Act

83.

Privilege claim declined

215.

Privilege claim declined

Costs

  1. At the hearing on 7 June 2023, I made an order that the prosecutor pay the defendants’ costs in relation to the preparation for and hearing of the notice of motion filed 5 May 2023 in the period 1 June 2023 to 7 June 2023, as agreed or assessed.

  2. In their supplementary submissions, the parties did not make submissions on the question of costs. In circumstances where each of the parties has had a measure of success, I will make no order as to costs in relation to the preparation for and hearing of the notice of motion filed 5 May 2023 in the period subsequent to 7 June 2023.

Orders

  1. The Court makes the following orders:

  1. The defendants’ notice of motion filed 5 May 2023 is upheld to the extent that the following documents identified in the prosecutor’s index (annexed to the affidavit of Mr Adam Hutchings sworn 26 June 2023) at Annexure A to these reasons for decision be produced to the defendants pursuant to paragraph 2 of the defendants’ amended subpoena dated 16 November 2022:

  1. 6, 29, 30, 47, 48, 49, 52, 53, 54, 58, 64, 65, 69, 72, 73, 83, 92, 96, 97, 106, 107, 124, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 156, 157, 158, 159, 160, 176, 177, 178, 179, 180, 181, 182, 215 and 216.

  1. No order as to costs.

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Annexure A

Annexure A - Index (39608216, pdf)

Endnotes

Decision last updated: 30 November 2023

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