Secretary, Department of Planning and Environment v Kelendi Farms Pty Ltd

[2022] NSWLEC 151

Land and Environment Court

New South Wales

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Kelendi Farms Pty Ltd [2022] NSWLEC 151
Hearing dates:	30 November 2022
Date of orders:	30 November 2022
Decision date:	30 November 2022
Jurisdiction:	Class 5
Before:	Duggan J
Decision:	See paragraph 13
Catchwords:	PRACTICE AND PROCEDURE – criminal proceedings – orders sought by Prosecutor to set aside part of subpoena – whether lack of relevance or oppression – Prosecutor’s ongoing duty of disclosure – subpoena to be amended
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category:	Procedural rulings
Parties:	Secretary, Department of Planning and Environment (Applicant) Kelendi Farms Pty Ltd (Respondent)
Representation:	Counsel: T Hammond (Applicant) P McGirr, solicitor (Respondent) Solicitors: Department of Planning and Environment McGirr & Associates
File Number(s):	2022/00178680, 2022/00178681, 2022/00178682, 2022/00178683, 2022/00178684, 2022/00178685, 2022/00178686, 2022/00178687, 2022/00211961, 2022/00211962, 2022/00211963, 2022/00211964
Publication restriction:	No

EX TEMPORE Judgment

1. HER HONOUR: In these proceedings the Defendants have issued a subpoena, the terms of which (subject to a reasonable period of time being provided to the Prosecutor to produce documents) is not objected to, but for paragraph 2 of the subpoena. Since the issuing of the subpoena the Defendants have agreed to modify the request in the subpoena in paragraph 2 to read:

“All correspondence between Christie Shrimpton and Mark Smith in relation to any investigation of Edenmore, Kelendi or Cashell referred to by Mr Mark Smith in his affidavit, dated 3 March 2021, at paragraph 8 between the dates 11 March 2019 and 14 July 2020.”

2. The Prosecutor by its Amended Notice of Motion seeks an order that paragraph 2 of the purported “amended subpoena” to the Secretary of the Department of Planning and Environment, set out in a letter from the Defendants on 16 November 2022, be set aside.

3. The Prosecutor seeks to set aside the terms of paragraph 2 of the subpoena on two bases. One is a lack of apparent relevance and in the alternative, oppression. I heard evidence from Mr Hutchings that in the event of the revised dates as outlined at [1] above that there would be 575 documents which would need to be examined in order to determine whether or not they fell within paragraph 2 of the request. The Secretary’s submission is that the requirement to provide an examination of that number of documents in the circumstances is oppressive, such that the subpoena should be set aside on that ground.

4. The Defendants submit that the investigation in relation to the subject proceedings was part of a continuous investigation that commenced some time in 2019, which investigation led to the filing of certain proceedings which were later withdrawn. The institution of these proceedings, being a continuation of that investigation, means that the earlier investigation is relevant or may be relevant to two factors. The first is the relevant date upon which an authorised officer became aware of the subject matter of these proceedings, and, secondly, in relation to observations of the investigators and the potential relevance to the cross‑examination of those investigators when the matter comes before the Court for determination.

5. The Prosecutor contends that in light of the fact that the summons and each of them designate a particular date for clearing, the earliest of which is 13 February 2020, and the date upon which the investigator became aware of the offence being said to be 23 June 2020, that there can be no apparent relevance on any argument of any document that has been created before the earliest date upon which the clearing is said to occur.

6. These are criminal proceedings and the Prosecutor has a continuing obligation of disclosure pursuant to the provisions of s 247E of the Criminal Procedure Act 1986 (NSW). That duty of disclosure includes the provision of any information which may reasonably be regarded as relevant to the prosecution case or the Defendant’s case and where such documents have not otherwise been disclosed to the Defendant. It also includes documents of which the Prosecutor is aware that would reasonably be regarded as relevant to the case that is not in the possession of the Prosecutor. The documents the subject of the subpoena are documents in the possession of the Prosecutor.

7. In relation to the claim of oppression I do not consider in criminal proceedings that the requirement to consider 575 documents is necessarily oppressive. It is necessary to consider the documents that are available to the Prosecutor for the Prosecutor to ascertain whether those documents may reasonably be regarded as relevant to the defence case, as well as the prosecution case.

8. The fact that the Prosecutor has, during the course of its investigation, produced a vast number of documents and a vast amount of material is just a fact of the case. The provision, as I said, of the subpoena requiring the assessment of 575 documents is not in my view of itself oppressive. However, the question is whether in the circumstances of the case there is an apparent relevance of the material that has been requested such that the material should be produced and, therefore, the 575 documents necessarily considered.

9. In circumstances where the charge period is fixed and the earliest point upon which the clearing for which the summons relates is 13 February 2020, I have some difficulty understanding the submission of the Defendants that material prior to that date can be relevant to either the knowledge of the authorised officer in relation to the undertaking of the offence, or in relation to matters going to the charge period. If that was the only submission upon which these documents were requested, I would be not satisfied that there was an apparent relevance, even on the low bar that is provided for, for the production of such documents pursuant to a subpoena as observed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.

10. I do note that these are criminal proceedings and the Defendants are entitled to full and ongoing disclosure. The submission, however, that the investigating officers, Mr Smith, who investigated the previous charge and the current charge, and Ms Shrimpton, who investigated the earlier charge, will be sought to be cross‑examined in relation to their observations both in connection with the subject charge period as well as their observations in relation to earlier investigations is such that I cannot say that the material may not have apparent relevance.

11. With that finding the date of 11 March 2019 becomes relevant as the authorised officer, Mr Smith, notes in paragraph  17 of his affidavit, 3 March 2020, that:

“I saw that the initial report of the alleged breach was received by DPIE on 11 March 2019. This report was then assigned to authorised officer Greg Campbell on 15 March 2019.”

12. That being the first occasion on which the investigative officer, Mr Smith, observes that investigations were being undertaken in connection with alleged breaches associated with the land, the subject of these charges can be the only date upon which I can fix as a relevant start point for the examination of the documents, there being no other indication that the investigation commenced prior to that date. I consider it reasonable that the Defendants has now sought to confine the request to the start date of 11 March 2019 and the conclusion date of 14 July 2020, being a date shortly after the investigative officer asserts that he became aware of the subject matter of the charges.

13. For those reasons, I propose to dismiss the Prosecutor’s Amended Notice of Motion on condition that the Defendants amend the request in paragraph 2 of the amended subpoena in the terms that I have set out above. Accordingly, I order that:

1. The Prosecutor’s Amended Notice of Motion, 25 November 2022, is dismissed in relation to Order 1 on the condition that paragraph 2 of the subpoena be amended;

2. I make Order 2, such that it reads “That the subpoena as amended in accordance with Order 1 be returnable on 10 February 2023”;

3. I reserve the costs of the Amended Notice of Motion dated 25 November 2022 and the Notice of Motion dated 4 November 2022; and

4. List the matter for directions and return of subpoena on 10 February 2023 before the List Judge.

I note that the Prosecutor is to produce documents the subject of the subpoena to the Defendants by 16 December 2022.

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Decision last updated: 15 December 2022