Citation: Namoi Valley Farms Pty Limited v Office of Environment and Heritage New South Wales; Department of Premier and Cabinet [2020] NSWCCA 298
Court: Court of Criminal Appeal
Date: 9 October 2020
Judge(s): Brereton JA (with Johnson J and Davies J agreeing)
Background
The applicant company faced prosecution in the Land and Environment Court for an alleged offence under s 12 of the Native Vegetation Act 2003, relating to the clearing of native vegetation on a property at Pilliga in north-western New South Wales. A preliminary issue arose as to whether the prosecution had been commenced within the statutory two-year limitation period, making the question of when the Office of Environment and Heritage first possessed evidence of the alleged offence directly relevant.
Subpoenas were issued at the applicant's request, and documents were produced by the Office, some of which were the subject of a claim of legal professional privilege. The central document was a "breach report" prepared by a compliance officer, Ms Wynn. In June 2020, Pain J in the Land and Environment Court upheld the privilege claim and refused the applicant leave to inspect the relevant document packets.
The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, challenging three aspects of Pain J's ruling.
Legal Issues
- Whether Pain J erred in admitting certain paragraphs of Ms Wynn's affidavit, which described both the office's general practice in preparing breach reports and her own specific purpose in preparing the document in question
- Whether Pain J erred in inspecting the privileged documents before ruling on the claim for privilege, over the applicant's objection
- Whether the admissible evidence was sufficient to establish that the dominant purpose of creating the breach report was obtaining professional legal advice or services
Decision
On the admissibility of Ms Wynn's affidavit, Brereton JA held that each of the three contested paragraphs was properly admitted. A deponent supporting a privilege claim must assert the purpose for which the relevant document was created, and a statement of the deponent's own subjective intention is the natural and appropriate way to do that. Subjective purpose is not conclusive, but the authorities confirm it is relevant to determining objective dominant purpose. The paragraph describing the general office practice was also admissible as contextual evidence of slight relevance, given Ms Wynn's familiarity with that practice.
On the inspection of documents, Brereton JA acknowledged that courts have criticised the practice of asking a judge to wade through contested documents in order to rule on a privilege claim (as Brereton JA himself had noted in Hancock v Rinehart (Privilege) [2016] NSWSC 12). However, Pain J had not used the inspection for that purpose. She inspected the packets solely to resolve a discrete factual question, namely whether there was one or two breach reports, a question that arose because the hearing was conducted remotely and the court held the packets. No error was involved in that limited inspection.
On the dominant purpose question, Brereton JA found Pain J's conclusion well-supported. The evidence included Ms Wynn's unchallenged account of her purpose, her description of office practice, and a contemporaneous departmental record in which Ms Wynn herself described the document as a "draft breach report for legal for your review." That contemporaneous notation corroborated Ms Wynn's stated purpose, and taken together the evidence plainly supported a finding that the dominant purpose of the report's creation was obtaining professional legal advice from the departmental litigation team. No arguable error was established, and leave to appeal was refused.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Affidavit evidence of a deponent's subjective intention in creating a document is admissible on a privilege claim, because it is relevant to (though not conclusive of) the objective dominant purpose test.
- A court does not err in inspecting documents the subject of a privilege claim for a limited and discrete administrative purpose, such as confirming the number of documents in a subpoena packet, where the inspection is not used as the basis for ruling on the privilege claim itself.
- Contemporaneous records corroborating a deponent's stated purpose can carry significant weight when the deponent's evidence is unchallenged and the surrounding circumstances are consistent with a privileged purpose.
- Under the dominant purpose test, the existence of other secondary purposes for a document's creation does not necessarily defeat a privilege claim, provided the dominant purpose remains the obtaining of professional legal advice or services.
- In dismissing the leave application, the Court of Criminal Appeal confirmed that an arguable case of legal or factual error must be established before leave under s 5F of the Criminal Appeal Act 1912 will be granted.
Legislation and Cases Referenced
Legislation
- Native Vegetation Act 2003 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- Chief Executive Office of Environment and Heritage and Namoi Valley Farms Pty Limited [2020] NSWLEC 69 (decision under appeal)
- Hancock v Rinehart (Privilege) [2016] NSWSC 12