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District Court 24 October 2025

SafeWork NSW v Fenner Dunlop Australia Pty Ltd (No.1)

[2025] NSWDC 428

Other
EVIDENCE PRIVILEGE CLIENT LEGAL PRIVILEGE LITIGATION DOMINANT PURPOSE

Citation: SafeWork NSW v Fenner Dunlop Australia Pty Ltd (No.1) [2025] NSWDC 428
Court: District Court of NSW
Date: 24 October 2025
Judge: Russell SC DCJ

Background

SafeWork NSW prosecuted a conveyor belt manufacturer following a serious workplace injury at a cement plant in February 2022. The prosecution alleged a breach of the primary health and safety duty under the Work Health and Safety Act 2011 (NSW). A trial was imminent when the interlocutory dispute arose.

In September 2025, SafeWork served a subpoena on the defendant seeking several categories of documents. The defendant resisted production of documents in four categories, claiming all were protected by legal professional privilege. The defendant ultimately narrowed its challenge to two categories: statements given by the injured worker, and two draft versions of an internal investigation report.

The core dispute concerned whether those documents were brought into existence for the dominant purpose of obtaining legal advice in anticipated litigation, or whether they served a separate, non-privileged purpose.

Legal Issues

  • Whether the defendant's notice of motion seeking to set aside the subpoena should be treated instead as an objection to inspection on grounds of privilege
  • Whether the privilege claim fell to be determined under section 119 of the Evidence Act 1995 (NSW) or at common law
  • Whether the defendant had discharged its onus of proving that the injured worker's statements were created for the dominant purpose of obtaining legal advice
  • Whether the draft investigation reports were protected by litigation privilege

Decision

Issue 1: Procedural characterisation of the motion

The court observed that the correct remedy for a claim of privilege over subpoenaed documents is not to seek to set aside the subpoena, but to produce the documents to the court and resist inspection. The court treated the notice of motion accordingly, as one seeking to resist inspection of the documents on grounds of legal professional privilege, with an amended notice of motion filed by leave to reflect that position (at [6]-[8]).

Issue 2: Applicable law

The court rejected the defendant's submission that the privilege claim should be determined at common law. The court held that section 131A of the Evidence Act 1995 (NSW) applied, requiring any objection to a disclosure requirement to be assessed under Part 3.10 of that Act, which contains the litigation privilege provision in section 119. The dominant purpose test applies under both the statute and the common law, meaning "dominant" describes the ruling, prevailing, or most influential purpose at the time the document was created (at [13]-[23]).

Issue 3: The injured worker's statements (paragraph 3 of the subpoena)

The court found that two investigations were running simultaneously from an early stage. A root cause investigation began before the defendant retained solicitors on 4 March 2022, and continued alongside the legally-directed privileged investigation that commenced on 7 March 2022 (at [58]-[64]). The court identified multiple gaps in the defendant's evidence: no one explained the purpose for which the Teams Call statement of 23 March 2022 was recorded, who was present, whether the injured worker was told the session was confidential, or whether the statement was passed to the authors of the privileged report (at [51]-[56]). Given those parallel investigations, Fenner had not called the "focused and specific evidence" necessary to establish that the dominant purpose of recording the statement was to contribute to a privileged report. The statement could equally have been taken for either investigation, or both (at [64]). Accordingly, the court found the documents in paragraph 3 of the subpoena were not protected by privilege and granted SafeWork access to them (at [65]).

Issue 4: The draft investigation reports (paragraph 4 of the subpoena)

The defendant produced two draft versions of its ICAM investigation report, both created after the solicitors had formally engaged and directed that the investigation be conducted confidentially for the purpose of obtaining legal advice. The court found the chain of correspondence, together with the defendant's sworn response to a regulatory notice under the Work Health and Safety Act 2011, established that those drafts were privileged. SafeWork was refused access to those documents (at [66]-[69]).

Orders Made

  • SafeWork NSW was granted access to and inspection of the documents produced in answer to paragraph 3 of the subpoena issued on 23 September 2025.
  • Operation of that order was stayed until 11:30am on 27 October 2025 to allow the defendant to consider the judgment.
  • SafeWork NSW was refused access to and inspection of the documents produced in answer to paragraph 4 of the subpoena.
  • The documents the subject of the refusal order were returned to the defendant's solicitors.
  • Costs were reserved.

Key Takeaways

  • Under section 131A of the Evidence Act 1995 (NSW), a party resisting production of documents under a subpoena on privilege grounds must satisfy the dominant purpose test in section 119, not the common law test, though the practical content of both tests is the same (at [13]-[21]).

  • The District Court confirmed that the party claiming privilege bears the onus of establishing it, and that onus requires focused and specific evidence going to the purpose for which the document was created at the time of creation (at [20], [23], [64]).

  • Where two investigations run simultaneously, one directed at root cause analysis and one legally directed, a claim of litigation privilege over documents generated during that period will fail unless there is clear evidence identifying which investigation the document served, and that the legally directed investigation was the dominant purpose (at [58]-[64]).

  • The correct procedural step when asserting privilege over subpoenaed documents is to produce the documents to the court and resist inspection, not to seek to set aside the subpoena itself (at [6]-[8]).

  • The District Court noted, without deciding the point, that a party's prolonged delay in challenging a privilege claim may give rise to difficulties at trial concerning the admissibility of any documents obtained late, particularly where that party had disclosure obligations that required its tender bundle to be finalised months earlier (at [27]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 22 117, 119, 131A
- Work Health and Safety Act 2011 (NSW), ss 19, 155

Cases
- Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998
- ASIC v Rich [2004] NSWSC 1089
- Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788
- R v Rogerson (No 31) [2016] NSWSC 195
- Singapore Airlines v Sydney Airports Corporation Limited [2004] NSWSC 380