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The Mansfield decision, if upheld, will mean that subpoenas in criminal proceedings which are issued based on knowledge gained from a section 9.22 notice may be at risk of being set aside.

The full version of this article originally appeared in the LexisNexis Local Government Reporter – Volume 17 Number 8.

Declaration of interest: Colin Biggers & Paisley acted for the defendant in the case discussed in this article.

In Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107 (Mansfield), the defendant successfully challenged the validity of two subpoenas issued to third parties by the prosecutor, on grounds which are less commonly raised.

The principal challenge concerned the prosecutor’s use of information obtained as a result of a notice issued pursuant to (the former) section 119J of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as the basis for serving the subpoenas. The defendant argued that the section 119J notice issued by the council was not issued for a proper purpose, that is, an “investigation purpose” under the EPA Act. Rather, the defendant submitted it was issued for the substantial purpose of enabling a criminal prosecution, amounting to an abuse of process.

The reasoning behind this argument arises because, on the defendant's case, a council is restricted to issuing a section 119J notice for the purpose of exercising its functions under the EPA Act. A criminal prosecution is not a function of a council under the EPA Act since that function is set out in the Criminal Procedure Act 1986 (NSW) and the Local Government Act 1993 (NSW), as confirmed by the Chief Judge in Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10, [64] (Zhang).

Ultimately this ground was sufficient in itself to lead the Court to set aside the subpoenas avoiding the need to analyse the more common grounds such as whether the subpoenas were too broad, or were in the nature of discovery.

What will be the implications for use of section 119J or section 9.22 notices if the Mansfield decision is upheld?

If the decision is upheld in the Court of Criminal Appeal, the decision will have implications for the use of section 119J notices (or section 9.22 notices as they are now) in circumstances where a criminal prosecution is a possibility. The decision suggests that if a criminal prosecution is possible at the time of a section 119J notice, then any information obtained pursuant to that notice should not be used to formulate subpoenas issued within criminal proceedings. To do otherwise would blur the council’s investigation powers with its criminal enforcement powers.

In this regard, the decision reaffirms and builds upon the Chief Judge’s reasoning in Zhang by applying to circumstances where criminal proceedings have not yet occurred.

The decision in Mansfield highlights some broader and less well-known parameters controlling the legitimacy of subpoenas particularly in the context of criminal proceedings in a local government context. The concepts of “fishing”, “discovery”, breadth and the legitimacy of the forensic purpose are well-known, but the abuse of process ground successfully ran in Mansfield serves as a useful reminder of this more obscure ground.

If the appeal in the Mansfield decision is upheld by the Court of Criminal Appeal, subpoenas in criminal proceedings which are issued based on knowledge gained from (now) a section 9.22 notice will be at risk of being set aside. Specifically, where a subpoena is issued in criminal proceedings on the basis of third party documents obtained during or before those proceedings through a section 9.22 notice, a risk arises that the subpoena will be set aside.

The decision in Mansfield has much broader application than simply the law of subpoenas, since the contention in the case overlaps with issues that could equally arise in the context of tendering such documents at trial, challenging the admissibility of documents tendered, and the probative value of any such documents that are admitted — something acknowledged by Sheahan J (at [19]).

Moreover, the decision will have important impacts on the deployment of section 9.22 notices in certain circumstances and the type of proceedings, if any, commenced after the issue of such a notice.

Read the full article here.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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