Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 6)

Case •

[2021] NSWLEC 28

•

31 March 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 6) [2021] NSWLEC 28
Hearing dates: 18 February 2021
Date of orders: 31 March 2021
Decision date: 31 March 2021
Jurisdiction:Class 5
Before: Robson J
Decision:

See orders at [57]

Catchwords:

CRIMINAL PROCEDURE — Notices to produce

— Application to set aside — Legitimate forensic purpose

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW) ss 1.6, 13.29, 13.31

Biodiversity Conservation Regulation 2017 (NSW) reg 13.3

Land and Environment Court Rules 2007 (NSW) r 5.2

Native Vegetation Act 2003 (NSW) ss 4, 44, 50

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) Pt 21, rr 21.10, 34.1

Cases Cited:

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536

Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110

Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71

Fraietta v Roads and Maritime Services [2016] NSWLEC 52

Holloway v State of Victoria [2015] VSC 526

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

ICAP Pty Ltd v Moebes [2009] NSWSC 306

Norris v Kandiah [2007] NSWSC 1296

Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

R(C’Wealth) v Baladjam[No 28] [2008] NSWSC 1449

R (C’Wealth) v Baladjam[No 37] [2008] NSWSC 1457

R v Saleam [1999] NSWCCA 86

R v Saleam (1989) 16 NSWLR 14

Rinehart v Rinehart [2018] NSWSC 1102

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129

Wyong Shire Council v Australia Skydive Pty Ltd; Australia Skydive Pty Ltd v Wyong Shire Council; Australia Skydive Pty Ltd v Central Coast Aero Club Ltd [2014] NSWLEC 56

Category:Procedural rulings
Parties:

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Merrywinebone Pty Ltd ACN 000 937 824 (Defendant)

In proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Kenneth Bruce Harris (Defendant)
Representation:

Counsel:
In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295:
C Hamilton-Jewell (Prosecutor)
T Hale SC (Defendants)

Solicitors:
In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295
Department of Planning, Industry and Environment (Prosecutor)
Thomson Geer (Defendants)
File Number(s): 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295
Publication restriction: Nil

Judgment

  1. Before the Court is a notice of motion filed 29 January 2021 by the Secretary, Department of Planning, Industry and Environment (the ‘prosecutor’) in part-heard Class 5 criminal proceedings, seeking an order to set aside a notice to produce dated 18 December 2020 (the ‘Notice’). The Notice was addressed to the prosecutor and issued by Kenneth Bruce Harris and Merrywinebone Pty Ltd (the ‘Harris Parties’), being the two effective respondents to this motion.

  2. The motion was heard on 18 February 2021. Ms C Hamilton-Jewell of counsel, appeared for the prosecutor and Mr T Hale of senior counsel, appeared for the Harris Parties.

  3. For the reasons that follow, I have decided that it is appropriate that the Notice is set aside.

Background

  1. I have recorded the nature and history of these proceedings in two earlier interlocutory judgments: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 and Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129 (‘Auen Grain (No 3)’). For concision, I adopt the background facts and, subject to the definitions in this judgment, the definitions used in Auen Grain (No 3), where I summarised the various charges in these proceedings as follows:

“[4] In summary, the prosecutor has charged two individuals and two companies, Auen Grain Pty Ltd (ACN 000 937 824) (‘Auen Grain’); Ronald Lewis Greentree (‘Mr Greentree’) – (the ‘Greentree Parties’); Merrywinebone Pty Ltd (ACN 101 059 769) (‘Merrywinebone’); and Kenneth Bruce Harris (‘Mr Harris’) – (the ‘Harris Parties’) (collectively, ‘the defendants’), with eight land clearing offences each (32 charges in total) allegedly committed between December 2016 and January 2019 on a property known as “Boolcarrol” located north-west of Narrabri. More specifically, each defendant is charged with six offences pursuant to s 12 of the (now repealed) Native Vegetation Act 2003 (NSW) (‘NV Act’) in that between 29 December 2016 and 24 August 2017, each cleared native vegetation on Boolcarrol otherwise than in accordance with a development consent or property vegetation plan granted under the NV Act. Each defendant is also charged with two offences pursuant to s 60N of the Local Land Services Act 2013 (NSW) (‘LLS Act’) in that between 25 August 2017 and 18 January 2019, each cleared native vegetation in a rural regulated area otherwise than in accordance with a property vegetation plan under the NV Act; a notification or certificate under the LLS Act; or a development consent granted in accordance with the NV Act or the LLS Act.”

  1. The substantive hearing, having proceeded for eight days in August and September 2020, is set down to continue for a further five days from 7 June 2021.

  2. For clarity, while these proceedings include proceedings in which the Greentree Parties are defendants, the notice of motion has only been listed against, and this judgment only relates to, those proceedings in which the Harris Parties are defendants.

Evidence

  1. The prosecutor read the affidavit of Timothy Christopher Walls affirmed 29 January 2021. Mr Walls is the solicitor with carriage of these proceedings for the prosecutor. Mr Walls deposed to the Notice being issued by the Harris Parties to the prosecutor, and the subsequent correspondence between the prosecutor and the legal representatives for the Harris Parties relating to the Notice. The prosecutor also provided further background details in its written submissions dated 8 February 2021, which the Harris Parties did not contest.

  2. The salient facts are may be summarised as follows.

  3. On 18 December 2020, the Harris Parties served the Notice on the prosecutor. The Notice has a (proforma) notation indicating it was issued pursuant to r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). The Notice relates to documentation relied upon in the preparation of two evidentiary certificates that the prosecutor was granted leave to rely on, earlier in these proceedings: Auen Grain (No 3). These are:

  1. An evidentiary certificate issued 18 August 2020 pursuant to s 13.31 of the Biodiversity Conservation Act 2016 (NSW) (‘BC Act’) and reg 13.3 of the Biodiversity Conservation Regulation 2017 (NSW) (the ‘BC Certificate’), certifying that the defendants were each a “landholder” as defined in s 1.6 of the BC Act; matters regarding the employment and delegations of a NSW Government employee; and the classification of certain plant species; and

  2. An evidentiary certificate issued 18 August 2020 pursuant to s 50 of the Native Vegetation Act 2003 (NSW) (‘NV Act’) (the ‘NV Certificate’), certifying that the defendants were each a “landholder” as defined in s 4 of the NV Act,

(together, the ‘Certificates’).

  1. It is uncontroversial between the parties that the effect of the Certificates (and the relevant legislative provisions pursuant to which the Certificates were issued) is that the facts in the Certificates are deemed to be proved in the absence of evidence to the contrary – noting that the NV Certificate is “prima facie evidence” that the defendants were landholders for the purposes of the NV Act, and the BC Certificate is evidence “in the absence of evidence to the contrary” that the defendants were landholders for the purposes of the BC Act: s 50 of the NV Act; s 13.31 of the BC Act.

  2. The Notice issued by the Harris Parties seeks the following:

“…

All documents relied upon in the preparation of and all documents recording what was done in the preparation of the following evidentiary certificates served in the proceedings:

1 Evidentiary Certificate dated 18 August 2020, pursuant to section 50 of the Native Vegetation Act 2003; and

2 Evidentiary Certificate dated 18 August 2020, pursuant to section 13.31 of the Biodiversity Conservation Act 2016 and 13.3 of the Biodiversity Conservation Regulation 2017,

(together, the Certificates) including, without limitation:

1   all documents which Sarah Carr considered, had regard to or relied upon when forming the view that it was appropriate in the circumstances to certify the matters set out in the Certificates;

2   all documents recording the reasons why Ms Carr considered it appropriate in the circumstances to certify the matters set out in the Certificates;

3   all drafts, notes and working papers created by Ms Carr or other officer, employee, servant or agent of the Department of Planning, Industry and Environment (Department) in the preparation of the Certificates;

4   all documents recording communications between any officers, employees, servant or agent of the Department, including, without limitation, Ms Carr, regarding the preparation of the Certificates, including, without limitation, emails, letters, memoranda, text messages, electronic messages, file notes and call logs; and

5   all communications between Ms Carr, the Prosecutor, any other officer, employee, servant or agent of the Department and any lawyers acting for any of them in relation to the preparation of the Certificates, including, without limitation, all legal advice received in relation to the Certificates or their preparation..

…”

  1. In late December 2020, the prosecutor sought an extension of the timeframe for compliance with the Notice from the Harris Parties. In early January 2021, the prosecutor was granted an extension of the timeframe for compliance with the Notice until 22 January 2021. On and after the extended date for compliance with the Notice, the prosecutor and the Harris Parties engaged in correspondence in relation to the basis for the issue of the Notice.

  2. This culminated in correspondence from the prosecutor to the Harris Parties dated 25 January 2021 seeking the withdrawal of the Notice (on the basis that, first, r 21.10 of the UCPR does not apply in Class 5 proceedings; second, there was a lack of specificity in the documents sought by the Notice; and third, there was no “legitimate forensic purpose” for the Notice and it is not “on the cards” that the documentation sought by the Notice would materially assist the Harris Parties’ case) and foreshadowing a motion to set aside the Notice if withdrawal was not forthcoming.

  3. Through correspondence to the prosecutor dated 28 January 2021, the Harris Parties pressed the substance of the Notice, noting in response to the concern that r 21.10 of the UCPR does not apply, that a subpoena could be issued in identical terms to the Notice. On 29 January 2021, the prosecutor advised the Harris Parties that to facilitate the just, quick and cheap resolution of the substantive issues raised by the Notice, it would treat the Notice as though it had been issued under r 34.1 of the UCPR.

  4. As a result, on 29 January 2021, the prosecutor filed the notice of motion seeking orders to set aside the Notice.

Preliminary issue regarding power to issue the Notice

  1. The prosecutor made initial submissions in relation to the inability of the Harris Parties to issue the Notice pursuant to r 21.10 of the UCPR in these proceedings, in circumstances where neither the Land and Environment Court Rules 2007 (NSW) nor the Supreme Court Rules 1970 (NSW) provide for the application of Pt 21 of the UCPR in Class 5 criminal proceedings in this Court. This submission does not appear to be disputed by the Harris Parties, given their reference to re-issuing the substance of the Notice as a subpoena. I accept the prosecutor’s submission that the Harris Parties did not have power to issue the Notice under r 21.10 of the UCPR.

  2. The prosecutor has agreed to treat the Notice as a notice to produce to court issued pursuant to r 34.1 of the UCPR to facilitate the expeditious resolution of the substantive issues raised by the Notice. I accept the prosecutor’s submission that the Harris Parties would be able to (re)issue the Notice under r 34.1 of the UCPR: r 5.2 of the Land and Environment Court Rules 2007 (NSW).

  3. As a result of the position adopted by the prosecutor, my consideration of, and my findings in relation to, the Notice that follow are based on r 34.1 of the UCPR. In making this comment it is appropriate to note that there are “important and fundamental distinctions” between notices to produce under rr 34.1 and 21.10 of the UCPR: Norris v Kandiah [2007] NSWSC 1296 (‘Norris’) at [3]. These distinctions have been previously explicated in judgments of this Court: Wyong Shire Council v Australia Skydive Pty Ltd; Australia Skydive Pty Ltd v Wyong Shire Council; Australia Skydive Pty Ltd v Central Coast Aero Club Ltd [2014] NSWLEC 56 at [20]; Fraietta v Roads and Maritime Services [2016] NSWLEC 52 at [6].

Submissions

  1. The prosecutor and the Harris Parties each provided detailed written submissions and made oral submissions at the hearing of the motion on 18 February 2021.

  2. The prosecutor submits that the Notice should be set aside because it was not issued for a legitimate forensic purpose. The prosecutor contends that there is no evidence to establish that the documents sought in the Notice will materially assist, or that there is a reasonable basis beyond mere speculation that the documentation is likely to assist, the Harris Parties in their defence.

  3. In contrast, the Harris Parties submit that there is a legitimate forensic purpose for the Notice and that is “on the cards” that the documents sought in the Notice will materially assist the Harris Parties in their defence. In correspondence to the prosecutor, the Harris Parties articulated that the legitimate forensic purpose of the Notice is to obtain documents that would be directly relevant to the weight that should be given to the Certificates by the Court.

  4. The prosecutor submits that the Harris Parties’ mere assertion about the “weight” to be given to the Certificates is not sufficient. The prosecutor notes that mere relevance to an issue is inadequate to support a legitimate forensic purpose: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (‘Chidgey’) at [59]-[62], [78]-[80].

  5. The Harris Parties further submit, first, that the Notice has a legitimate forensic purpose, and second, that it is “on the cards” that the documents will materially assist their case, for the following reasons:

  1. The legislative regimes applicable to the proceedings include evidentiary provisions providing that a “landholder” is taken to have carried out clearing unless other criteria are established: s 44 of the NV Act; s 13.29 of the BC Act;

  2. While the Certificates are admissible as prima facie evidence that Merrywinebone was a “landholder” for the purposes of the relevant legislation, the basis upon which it is said that Merrywinebone was a landholder is unclear and not explained in circumstances where Merrywinebone had no interest in Boolcarrol, and a 48% interest in the Partnership Agreement;

  3. The Notice seeks documents which record the reasoning, factual basis and evidence for the conclusion that Merrywinebone was a “landholder” in circumstances where it is “highly unlikely” that the Certificates would have been signed without such supporting documents;

  4. The evidence relied upon to certify that Merrywinebone is a landholder may support an argument that Merrywinebone is not a landholder. If there was evidence supporting a “contrary conclusion” to that of the Certificates, this would be relevant to the Harris Parties’ case; and

  5. To the extent that the documents sought contain evidence, assumptions and reasons relied upon to justify the “certified opinion” in the Certificates, these documents would be a starting point for establishing that Merrywinebone was not a landholder, and in that sense would go to the weight that the Court should give the Certificates.

  1. The Harris Parties submit that it is “almost axiomatic” that the documents which are sought in the Notice are relevant to an issue in the proceedings, being whether Merrywinebone was a landholder. The Harris Parties note that they are not required to establish precisely what the documents sought are, or what their content may be.

  2. For completeness, the Harris Parties, on occasion, used the term “landowner” in their written and oral submissions. I have assumed this was an accidental error given it is the defined term “landholder” that is in issue, and have adopted landholder in this summary.

  3. The prosecutor refutes the Harris Parties’ assertion that the documents underlying the Certificates may support an alternative conclusion regarding Merrywinebone’s status as a landholder. In this respect, the prosecutor submits that the Certificates do not certify an “opinion”.

  4. Instead, the prosecutor characterises the Harris Parties’ purpose in issuing the Notice as trying “to see if the documents support a case”. The prosecutor submits that this is an impermissible purpose for the Notice: Chidgey at [85]; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. The prosecutor notes that there will be no legitimate forensic purpose where documents are being sought in the hope that something will “emerge from the material” that will assist in the Harris Parties’ case: R (C’Wealth) v Baladjam [No 28] [2008] NSWSC 1449 (‘Baladjam [No 28]’) at [60].

  5. In this respect, the prosecutor submits that the Harris Parties’ purposes for seeking the documents amount to a mere “fishing expedition”, which is not a legitimate forensic purpose: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 (‘Alister’) at 414.

  6. The prosecutor contends that the Harris Parties have not put on evidence to support an indication that “it is on the cards” that the documents sought will materially assist their case, and submits that no persuasive evidence has been put forward by the Harris Parties which indicates that the Certificates may be incorrect, or that the documents sought will assist in throwing doubt on the Certificates. The prosecutor characterises the Harris Parties’ contentions as the documents “might or [they] might not” assist the Harris Parties’ case, which is not enough.

  7. The prosecutor directs the Court to a number of principles from previous cases in support of its position that the Harris Parties have not met the required onus, including:

  1. That a mere fishing expedition is not a legitimate forensic purpose: Alister at 414;

  2. That it is impermissible to use a subpoena to check procedural compliance where there is no evidence suggesting there has been, or might have been, any non-compliance with procedure: Chidgey at [84];

  3. Where there is no “external collateral basis” for a concern in relation to the consideration leading to an evidentiary certificate, the Court could not be satisfied that the legitimate forensic purpose for a notice (seeking documents) could be made out, nor that it is “on the cards” that the documents sought would materially assist the case: R (C’Wealth) v Baladjam [No 37] [2008] NSWSC 1457 (‘Baladjam [No 37]’) at [17];

  4. That seeking documents in the “hope” that something will emerge from the material that supports an “attack” is not permissible: Baladjam [No 28] at [60]; and

  5. Where it had not been established that the documents sought by the witness summons might assist in throwing doubt on evidentiary certificates, it was correct to set aside the summons on the basis of lack of legitimate forensic purpose. In Holloway v State of Victoria [2015] VSC 526 (‘Holloway’), Cavanough J held that the magistrate who determined the case at first instance had not erred in finding that there was no conclusive evidence that raised a prospect that the road safety cameras may have been malfunctioning and setting the summons aside: at [74].

  1. In response, the Harris Parties seek to distinguish the present proceedings from previous cases such as Baladjam [No 37], on the basis that the Notice was not issued for the purposes of challenging the validity of the Certificates (that is, was not being used to mount a collateral attack on the Certificates). In this respect, in Baladjam [No 37], the documents sought by the subpoena and oral call for production went to the validity of conclusive evidentiary certificates and their admissibility. The evidentiary certificates enabled warrants to be executed, where material obtained under the warrants was going to be tendered as evidence in relation to issues in the case. In contrast, the documents sought by the Notice are not being used to attack the validity of the Certificates but are instead being used as evidence in support a contrary conclusion to the Certificates on what the Harris Parties submit is an issue in the case, being whether Merrywinebone was a landholder.

  2. The Harris Parties also note that unlike in Baladjam [No 37], the Certificates are not “conclusive”. This means the Certificates function to shift an onus in relation to evidence onto the defendants, in circumstances where further evidence could then discharge that onus in relation to whether Merrywinebone is a landholder. The Harris Parties submit that the documents sought through the Notice would potentially provide that further evidence.

  3. The Harris Parties made submissions in relation to the approach to be taken in circumstances where the production of documents is sought to support a defendant in criminal proceedings. They submit that the Court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings, citing Alister at 414.

Consideration

  1. Relevantly, r 34.1(1) of the UCPR provides as follows:

“(1)   A party may, by notice served on another party, require the other party to produce to the court, or to any examiner—

(a)   at any hearing in the proceedings or before any such examiner, or

(a1) at any time fixed by the court for the return of subpoenas, or

(b)   by leave of the court, at some other specified time,

any specified document or thing.

...”

  1. As an initial comment, I note that the consideration of a notice to produce under r 34.1 of the UCPR is similar to the consideration of a subpoena: Norris at [3]; Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [12]; Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71 at [34]. Given this, many of the relevant authorities (including those cited by the parties in this motion) relate to setting aside subpoenas as well as notices to produce.

  2. The principles regarding the setting aside of notices to produce are relatively clear (as I noted in Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121 at [21]). The party issuing the notice to produce, being the Harris Parties in relation to the Notice, has the onus of establishing:

  1. that it has a “legitimate forensic purpose” in seeking the documents; and

  2. that it is “on the cards” that the documents sought will materially assist its case: R v Saleam [1999] NSWCCA 86 at [11]; Chidgey at [64]; Alister at 414.

  1. The prosecutor raises no issue in relation to the burdensomeness or oppressiveness of the Notice, so I do not consider this further.

  2. I have considered the competing submissions from the parties in relation to whether the Notice has a legitimate forensic purpose, and whether it was “on the cards” that the documents would materially assist the Harris Parties’ case.

  3. I note that while the Certificates relate to all the defendants being landholders, and the Notice served on the prosecutor sought “all documents” in relation to those Certificates, given the Harris Parties’ characterisation of the legitimate forensic purpose of the Notice, the focus of the parties’ arguments during oral submissions was on documents relating to Merrywinebone’s status as a landholder.

  4. In considering legitimate forensic purpose, I have considered the cases referred to by the parties (and the cases referred to as authorities in those cases). This includes the succinct analysis of what is a legitimate forensic purpose for subpoenas and notices to produce of Ward CJ in Eq in the civil case Rinehart v Rinehart [2018] NSWSC (‘Rinehart’) at [43] to [54], in which her Honour noted the following:

  1. It must be shown that the documents sought will materially assist the case, or that there is a reasonable basis beyond speculation that they are likely to assist: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [13]-[14];

  2. The context of the particular case, or identified issue, is relevant to the determination of legitimate forensic purpose: ICAP Pty Ltd v Moebes [2009] NSWSC 306 (‘Moebes’) at [33];

  3. The task to be undertaken is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings: Rinehart at [47]; and

  4. Without legitimate forensic purpose, issuing a subpoena may be a fishing expedition: Rinehart at [48].

  1. As an initial comment, I note the submission of the Harris Parties that the Notice was not issued for the purposes of a collateral challenge to the Certificates. That is, the documents were not sought by the Harris Parties for the purpose of invalidating the Certificates. Rather, they were sought for the purpose of providing evidence contrary to the facts in the Certificates. This context is relevant to the determination of the issue for which it is likely that the documentation sought by the Notice will assist in their defence: Moebes at [33]; Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20]-[21].

  2. As submitted by the Harris Parties, it also gives rise to a distinction between the use of the Notice, and the subpoenas and oral calls in the cases involving evidentiary certificates referred to by the prosecutor: Baladjam [No 28]; Baladjam [No 37]; and Holloway, where the documents were being sought to enable an attack on the evidentiary certificates themselves, rather than assist in relation to an identified issue in the proceedings.

  3. Although not determinative in my consideration of this motion, and although not without some hesitation, I am included to accept the Harris Parties’ submission that the legislative regimes for the offences with which Merrywinebone has been charged makes Merrywinebone’s status as a “landholder” a matter in issue, and therefore documents that go to Merrywinebone’s status as a landholder may be relevant to a matter in issue in the proceedings.

  4. However, while the Harris Parties submit that it is “almost axiomatic” that the documents which are sought in the Notice are “relevant” to an issue in the proceedings, I accept, as submitted by the prosecutor, that mere relevance to an issue in the proceedings is not sufficient: Chidgey at [59]-[63], [78]-[80]; Baladjam [No 37] at [10].

  5. The Harris Parties submit that, where the documents being sought are to assist in the criminal defence of an accused, the Court’s approach should be weighted towards production, referring to the comments of Gibbs CJ in Alister at 414-415:

“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (20)), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ''fishing'' expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”

  1. The Harris Parties note that in Alister, Gibbs CJ supported the production of documents despite the applicants being “unable to say that any documents of the kind described in the subpoena exist or, if they do exist, that they are likely to assist the applicants' case”: at 413-414. I consider that the Harris Parties were submitting that I should err towards allowing production of the documents when considering the Notice, as the documents sought under the Notice will assist in the criminal defence of the accused.

  2. In Baladjam [No 37], Whealy J specifically noted that “[t]he "on the cards" test is a relaxation of the test applicable in civil cases. It is a more appropriate test in criminal proceedings because it recognises that an accused person may be on trial for his or her liberty” and cited Alister at 456 and R v Saleam (1989) 16 NSWLR 14 (‘Saleam (No 1)’) at 17-18: at [11]. In Saleam (No 1), the Court confirmed that the formulation “on the cards” that the documents would materially assist was used by Gibbs CJ in the context of criminal proceedings and where the special weight had to be given to the fact that the documents might assist an accused person whose liberty is at stake: at 17-18.

  3. Therefore, while noting that the Harris Parties point to the specific context of the Chief Justice’s consideration of the issues and the use of the formulation “on the cards” in Alister, I remain content that the formulation that it is “on the cards” that the documents sought in the Notice would materially assist, is the appropriate test to consider in this motion. As such, I consider that it must be shown that it is “on the cards” that the documents sought in the Notice will materially assist the Harris Parties’ defence of their case.

  4. The Harris Parties submit that there was no evidence that Merrywinebone was a landholder in relation to Boolcarrol. The Harris Parties direct the Court to the Partnership Agreement, and the fact that Merrywinebone did not own Boolcarrol. They submit that the Notice seeks documents that make the connection between Merrywinebone being a landholder in relation to Boolcarrol, and that access to the documents would materially assist the Harris Parties in mounting their argument to the contrary.

  5. Previous cases illustrate that a notice to produce cannot be used to obtain documents to check whether or not certain facts exist: Chidgey at [85], nor to see whether there are documents that assist in the defence of the case: Baladjam [No 28] at [57]. In Baladjam [No 28], Whealy J found that attempting to obtain material “in the hope that something will emerge from the material” which will support an attack was a “fishing expedition” and an impermissible use of the subpoena: at [60].

  6. Having considered the submissions of the Harris Parties, in my view, a similar situation to that described in Chidgey and Baladjam [No 28] arises in relation to the Notice. The Notice seeks documents that were considered, had regard to, relied upon in, or set out the reasons for, certifying the matters set out in the Certificate, as well as drafts, notes, working papers and communications in relation to the preparation of the Certificates.

  7. While the Harris Parties contend that there is an issue in the proceedings, being Merrywinebone’s status as a landholder, I do not consider that they have demonstrated that it is “on the cards” that the documents sought in the Notice would materially assist the Harris Parties’ defence of their case in relation to this issue.

  8. In arriving at this conclusion, I note first, that while I accept that there may be documents that meet the description in the Notice, there is no evidence to suggest that there is any concern or inconsistency in relation to the Certificates; and secondly, in this respect, I note the expansive definition of “landholder” in both the NV Act and the BC Act means that the fact that Merrywinebone did not own Boolcarrol does not indicate there is an error in relation to its certification as a landholder: s 4 of the NV Act and s 1.6 of the BC Act.

  9. Further, I consider that this is relevant because it means that there is no suggestion that the documents sought will provide the Harris Parties with evidence that Merrywinebone was not a landholder (noting again the Harris Parties maintain that there is no collateral attack on the Certificates and the Notice is an effort to obtain further evidence to meet the Harris Parties’ evidentiary onus under legislation).

  10. Given my view, I accept the prosecutor’s characterisation that the highest it could be put is that the documents might or might not support an argument by the Harris Parties that an alternative conclusion in relation to Merrywinebone’s status as a landholder should be reached, and therefore, it cannot be said that it is “on the cards” that the documents sought in the Notice are likely to materially assist the Harris Parties’ defence of their case.

  11. For the above reasons, I find that the use of the Notice to seek documents that have the potential to support an argument that Merrywinebone is not a landholder is piscatorial in nature, and therefore an impermissible purpose for the Notice. I am satisfied that the Notice should be set aside on the basis that it constitutes a fishing expedition.

Orders

  1. The Court orders that:

  1. The notice to produce dated 18 December 2020 addressed to the Secretary, Department of Planning, Industry and Environment issued by Kenneth Bruce Harris and Merrywinebone Pty Ltd be set aside.

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Decision last updated: 31 March 2021

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Cases Cited

19

Statutory Material Cited

6

Alister v the Queen [1984] HCA 85
Alister v the Queen [1984] HCA 85
Alister v the Queen [1984] HCA 85