Bailey & Anor v Director-General Department of Land and Water Conservation & Ors [2009] HCATrans 257 (2 October 2009)

Last Updated: 26 May 2010

[2009] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S118 of 2009

B e t w e e n -

BRUCE CLYDE BAILEY

First Applicant

JANET BEATRICE SHAFIK-BAILEY

Second Applicant

and

DIRECTOR-GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION NOW KNOWN AS DIRECTOR-GENERAL DEPARTMENT OF NATURAL RESOURCES NEW SOUTH WALES

First Respondent

WATER ADMINISTRATION MINISTERIAL CORPORATION

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 2.31 PM

Copyright in the High Court of Australia

__________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR P.E. KING for the applicant. (instructed by Hicksons Lawyers)

MR G.C. LINDSAY, SC: May it please the Court, I appear with MR I.L. HARVEY for the respondents. (instructed by Crown Solicitor (NSW))

HEYDON J: Yes, Mr Gleeson.

MR GLEESON: Your Honours, the proposed appeal concerns three primary matters. The first is the new section 122 of the Evidence Act (NSW) which is now replicated in the Commonwealth, Victoria and extended in New South Wales at least to pre-trial procedures. As such, it is a section of importance to litigation in the country. Section 122 in full is found in our bundle at tab 10. It involves these critical elements. First of all, subsection (1) has been retained from the former section which creates loss of privilege where evidence is adduced with consent, which would include express or implied consent. Secondly, subsection (2) has brought into the statute the principle adopted by the Court at common law in Mann v Carnell and applied in Osland. Thirdly, subsection (3), which appeared in the old section, has been retained but as a non-exhaustive application of subsection (2) and, fourthly, there are the provisos found in subsection (5).

The second matter the appeal concerns is one document which your Honours will find relevantly in the book at pages 142 to 143. We submit that that document contains a single but composite communication from the relevant officers within the department to the decision-maker who has signed it on the bottom of the second page, Mr Bob Smith, containing the relevant considerations, legal and otherwise, as to whether to prosecute Mr Bailey.

It is a unified communication which includes an identification of a single question in paragraph 1.1, the background in paragraphs 2.1 to 2.8 which has been obtained from the Department offices in the Barwon Region. Paragraph 2.9 attaches full details of the offences and relevant considerations in the recommendation from that region. Paragraphs 2.1 to 2.8 clearly reflect a summary of the more detailed material in 2.9 and 2.9 has to that extent been substantially disclosed. Then the document proceeds to comment, which is the work of a legal officer within the Department with a practising certificate, Lindsey Paget-Cooke, and it includes an analysis of the legal position.

CRENNAN J: Paragraph 3.8 is the one that is really important for your purposes, is it not?

MR GLEESON: Paragraph 3.8 is important as one of the indications that what the decision-maker is being given is an assessment of whether this prosecution ought to be brought in law. All I wished to observe in getting to 3.8 was that 3.1 to 3.3 are, in effect, there is a prima facie offence because Mr Bailey cleared land without an approval under a certain Act. Paragraph 3.4 comes to what is absolutely critical in this case because Mr Bailey had informed the Department in advance that his prospective defence to any prosecution was that he cleared the land for the purpose of building of a rural structure, being a dam, within the exemption.

The Department records in 3.4 a position that the relevant exemption does not go as far as Mr Bailey needed. In 3.5 the Department refers to Mr Bailey’s legal advice which he provided from Allens which the Department said we do not find persuasive. That is the point upon which he won his case. He was found to be correct in that legal advice and the whole of that section 3 is the assessment by the legal officer of whether it is proper in law and sufficiently likely to succeed to bring the prosecution. Section 4 is the corresponding recommendation.

I just pause to observe in 3.7, it provides us with more information about 2.9 because it tells us that the region has actually requested a prosecution. Justice Tobias, with respect, got that matter wrong because he said there has been no disclosure of what the position of the region was. Thus far, what is before the decision-maker is the region requests a prosecution for reasons identified, the legal branch supports it based on an analysis of the law. The document is then adopted by the general-manager. It then goes to a Mr Chris Guest who is not a lawyer. He has recorded something under the black blob and initialled it. On the face of the document he is supportive of the recommendation, but subject to a matter withheld from us.

Therefore, what has occurred is a single but composite communication has come to the decision-maker where the defendants now wish to say, we can reveal to you an important part of our legal thinking, namely, we took a view that the exemption was too narrow for Mr Bailey’s purpose but we will withhold critical assessments of the issue whether to prosecute, namely, that attachment 1 which came from the region and whatever it was Mr Guest was told. At the foot of the page is Mr Bob Smith saying, “Following discussion I agree to proceed with the prosecution as recommended”, being an assertion that he has acted in accordance with the recommendations being, obviously enough, the whole of the recommendations coming to him within the document.

The third piece of material in the proposed appeal is the answer to two interrogatories which are found at page 75. With respect to his Honour Justice Tobias, he has focused on answer 14 and not considered answers 13 and 15 together. Answer 13A is an assertion that the decision memorandum contains background matters, comment, legal advice and recommendations. Answer 15A(b) critically is an assertion that the prosecutor considered all of the material before him, which must include the material that has been masked, discussed it and agreed to proceed as recommended. That is an assertion in the clearest of terms that the whole of the document, including the withheld material, was formative in the decision to prosecute.

Against that background, in relation to section 122, there are at least two key errors in Justice Tobias’ judgment, with respect. Commencing at page 87, when his Honour dealt with the argument based upon Great Atlantic, his Honour analysed that case, noted at 126 that it was cited with apparent approval at common law in this Court in Maurice by three Justices of the Court. At paragraph 132 said it stands only for the proposition that if the whole of a document is privileged, you cannot waive the privilege as to part only unless it contains two discrete subject matters.

If Great Atlantic is that narrow, the question one would have expected his Honour to deal with at paragraph 133 is, did the document as a whole satisfy the dominant purpose test for privilege? If it did under section 119, there has been a disclosure of much of it, including the legal content and we are directly Great Atlantic instead. What his Honour has done at 133 is not look at the document as a whole but assume away the critical question by assuming that because they abandoned the claim to

privilege in respect of parts that could not be legitimately sustained, they were entitled to maintain it with respect to other parts.

So that has never focused on the question, with respect, did it satisfy the dominant purpose test? If it did, as I say, it is a Great Atlantic Case. If it did not, there is still the same fundamental inconsistency as in, why can it be that a prosecutor can reveal a significant part of the legal thinking which informed the decision and yet hold back some other part of the legal thinking clearly relevant to the same decision? The question that we respectfully posed at the end of our written submissions at page 121 in paragraph 59, we submit has never been answered.

The second main error of Justice Tobias commences at page 91, returning there. It is the point I averted to that he has focused on the wrong interrogatory and, accordingly, the assessment of the case he makes in paragraph 137, particularly over on page 92, that the Director-General is not seeking to assert that he acted upon legal advice is simply incorrect in the face of the interrogatory.

In relation to the President’s judgment at pages 47 and 48, the questions that we submit are of importance for all trial litigation concerning the application of Great Atlantic and the application of Attorney-General v Maurice in the context of the current section have been treated by the President as irrelevant to this case. We submit they are central.

In addition to those matters, our first special leave point raises a question of whether it is proper for the court to inspect documents in the absence of proper particularisation or proof of a claim to give a decision which no one can ever know the basis upon which it was reached. In that regard, in-chief we threw down the gauntlet that if one reads page 12 to the trial judge’s findings as to the privilege categories that the documents fell into the five categories, the gauntlet was, where can we know from either judgment which of the five categories the redacted material falls into? There is no answer to that question. If your Honours please, they are our submission, unless there are any questions.

HEYDON J: Thank you, Mr Gleeson. We need not trouble you, Mr Lindsay.

The Court is of the opinion that the application does not raise questions of sufficient materiality on the construction of section 122 to merit a grant of special leave and the application is to be dismissed with costs.

AT 12.43 PM THE MATTER WAS CONCLUDED