Citation: SafeWork NSW v JBS Australia Pty Ltd (No. 2) [2023] NSWDC 145
Court: District Court of New South Wales
Date: 10 May 2023
Judge: Russell SC DCJ
Background
SafeWork NSW commenced a prosecution against a large meat processing company following a serious workplace incident at a feedlot in February 2020. An employee performing hay bale moisture testing was struck and crushed by two bales, each weighing approximately 670 kg, when they fell from a stack. SafeWork alleged the defendant failed to meet its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure worker health and safety, contrary to s 32 of the same Act.
The defendant entered a not guilty plea, and the matter was listed for a three-week trial before Judge Scotting commencing 31 July 2023. As part of its prosecution preparations, SafeWork issued a subpoena to the defendant requiring production of three categories of documents: pay slips for the injured worker, an internal investigation report into the incident, and records concerning the risk of hay bales falling from stacks.
The defendant moved to set aside the subpoena entirely, or alternatively to restrict access to documents produced under it. In particular, it resisted disclosure of the internal investigation report on the basis of client legal privilege.
Legal Issues
- Whether the subpoena issued by a prosecutor to a defendant in criminal proceedings should be set aside, including whether the "companion rule" (which limits the use of subpoenas to obtain a party's own documents) applied in this context.
- Whether the internal investigation report commissioned after the incident attracted client legal privilege, such that the prosecutor could not access it.
- Whether access to documents produced under the remaining categories of the subpoena (pay slips and records concerning prior incidents and risks) should be granted to the prosecutor.
Decision
On the application to set aside the subpoena: The court refused to set aside the subpoena. The defendant's argument relied substantially on the companion rule, a principle that generally prevents a subpoena being used as a device to compel a party to produce its own documents as a form of pre-trial discovery. The court considered whether that rule applied in criminal proceedings where the subpoena was directed at the defendant itself. The court ultimately rejected the application to set aside the subpoena in its entirety.
On client legal privilege over the internal investigation report: The court accepted the defendant's claim that the report produced under paragraph 2 of the subpoena attracted client legal privilege. The evidence of the defendant's in-house lawyer, which went unchallenged, was that he perceived a real risk of prosecution and commissioned the investigation report for the dominant purpose of obtaining legal advice on a health and safety matter. SafeWork argued that the commissioning of the report through an in-house lawyer was an artificial construct designed to cloak an otherwise operational document with privilege. The court rejected that characterisation, finding the dominant purpose test was satisfied and that the manner in which the report was commissioned, treated, and used supported that conclusion.
On access to remaining documents: The court ordered that the prosecutor be granted access to the documents produced in response to paragraphs 1 and 3 of the subpoena (pay slips and records concerning the risk of falling hay bales), which had been held in a sealed envelope on the court file pending the court's ruling.
On costs: Both parties achieved a mixed result. The application to set aside the subpoena failed, but the privilege claim succeeded. The court reserved costs accordingly.
Orders Made
- The application to set aside the subpoena issued on 24 January 2023 is refused.
- The documents produced pursuant to paragraph 2 of the subpoena are subject to client legal privilege; the prosecutor cannot access them.
- The prosecutor is granted access to documents produced in response to paragraphs 1 and 3 of the subpoena.
- The sealed envelope marked "Subject to Client Legal Privilege" is to be returned to the defendant's solicitor, who must keep and preserve those documents pending the conclusion of the trial.
- Costs of the Notice of Motion are reserved.
Key Takeaways
- The District Court refused to set aside a subpoena issued by a criminal prosecutor to the defendant company, declining to extend the companion rule in a manner that would have prevented any such subpoena from operating in criminal proceedings.
- Client legal privilege can attach to an internal investigation report commissioned after a workplace incident, provided the dominant purpose of commissioning the report was to obtain legal advice rather than to serve an operational function.
- An unchallenged affidavit from an in-house lawyer attesting to a genuine perceived risk of prosecution and a legal advice purpose was sufficient to establish the dominant purpose test in this case.
- SafeWork's argument that routing an investigation through in-house counsel was an artificial construct designed to "cloak" the report with privilege was rejected, with the court finding the surrounding circumstances were consistent with a genuine legal purpose.
- A mixed outcome on a Notice of Motion of this kind, where one party succeeds on the central privilege question but fails on the application to set aside the subpoena entirely, may lead a court to reserve rather than award costs.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 155, 171
- Work Health and Safety Act 2011 (Cth), s 32
- Evidence Act 1995 (NSW), ss 17, 118, 119, 131A, Pt 3.10
- Criminal Procedure Act 1986 (NSW), s 222
- Criminal Assets Recovery Act 1990 (NSW)
- Supreme Court (General Civil Procedure) Rules 2005 (VIC)
Cases:
- CFMEU v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 270 CLR 523
- Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477
- Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
- Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196
- Lee v The Queen (No. 2) [2014] HCA 20; (2014) 253 CLR 455
- NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456