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

Category: Procedural rulings

Parties: SafeWork NSW (Prosecutor)
Fenner Dunlop Australia Pty Ltd (Defendant)

Representation: Counsel:
J Stratton SC / B Docking (Prosecutor)
B Hodgkinson SC / N Read (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
HWL Ebsworth (Defendant)

File Number(s): 2024/54418

JUDGMENT

Introduction

1. SafeWork NSW (SafeWork) has prosecuted Fenner Dunlop Australia Pty Ltd (Fenner) alleging a breach of a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the WHS Act). The prosecution arises out of an incident which occurred on 13 February 2022 at the Boral Cement Plant at New Berrima. Mr Douglas Bennett suffered serious injuries in the incident.

2. SafeWork filed a Summons in this Court on 9 February 2024.

3. The matter came before the Court from time to time for directions. Ultimately on 11 February 2025 a plea of not guilty was entered. The matter was provisionally listed for hearing for four weeks commencing on 27 October 2025. On 11 February 2025 directions were made for the service of documents and notices. One of those directions was that SafeWork had to serve on the defendant the index to the prosecutor’s tender bundle. This had to be done by 5 May 2025. A further direction was that by 5 May 2025 SafeWork had to serve on Fenner a certificate signed on behalf of the prosecutor that the prosecutor had made inquiries and complied with its duty of disclosure.

Subpoena for Production

4. On 23 September 2025 SafeWork served a subpoena for production upon Fenner. The schedule to the subpoena set out nine classes of documents. Fenner initially raised a dispute concerning the documents listed in pars 2, 3, 4 and 5 of the schedule to the subpoena.

5. On 3 October 2025 Fenner filed a Notice of Motion in relation to the subpoena. The Notice of Motion sought an order that categories 2 to 5 (inclusive) of the subpoena for production “be set aside”. The ground for such order was said to be that “[t]he documents sought to be produced under categories 2 to 5 (inclusive) are protected by legal professional privilege.”

6. Subpoenas can be set aside for a number of reasons. For example, a subpoena can be set aside if there is no legitimate forensic purpose for the subpoena. A subpoena can be set aside if it is somehow an abuse of process. The correct remedy in relation to documents said to be protected by legal professional privilege is not to seek to set aside the subpoena, but rather to produce the documents to the court, and object to such documents being inspected by the other side, because such documents are protected by legal professional privilege.

7. This judgment concerns the Notice of Motion in relation to the subpoena. I propose to treat the Notice of Motion as one which seeks to resist inspection of the documents by SafeWork, on the grounds of legal professional privilege. An Amended Notice of Motion was belatedly filed by leave, to reflect the final position of Fenner.

8. That approach seems to accord with the present wishes of Fenner, which now “objects to access being granted to and inspection of the documents on the basis of legal professional privilege” – see DX2 par 3.

9. Subsequently, Fenner abandoned its challenge to par 5 of the subpoena. Fenner also abandoned its challenge to par 2 of the subpoena, upon the basis that there were no documents to produce.

The subpoena

10. The relevant paragraphs of the subpoena the subject of challenge by Fenner are as follows:

“3. A copy of the recording of Douglas Bennett that Deni Murray told Inspector Brendan Williams, on or around 30 March 2022, was obtained in order to make a statement of events of the day of the incident.

4. In relation to the “ICAM” that Deni Murray advised Inspector Brendan Williams of on (or around) 23 February 2022, copy of one or more of the following:

a. That ICAM

b. Any drafts of that ICAM.”

11. The solicitor for Fenner set out in a table in DX 2 par 4 the documents over which legal professional privilege was claimed. That table is in the following form:

| | Document | | 1 | ICAM 1775_Struck by exploded fluid coupling DRAFT V4 2.05.22.pdf - first converted to PDF document on 3 May 2022. | | 2 | ICAM 1775_Struck by exploded fluid coupling DRAFT V5 28.07.22.docx dated 28 July 2022. | | 3 | Doug Bennett Statement - Final.docx - taken as a Teams Call Statement on 23 March 2022 - first transcribed as a word document on 2 May 2022. Doug Bennett Statement - Final.pdf - first converted to PDF document on 4 August 2022 | | 4 | Questions for Doug.docx dated 10 March 2022. |

12. The two statements of Mr Bennett referred to in the table fall within par 3 of the subpoena. The first two documents in the table, which start with a description “ICAM 1775” fall within par 4 of the subpoena. At the hearing Fenner abandoned its argument concerning the “Questions for Doug” document, upon the basis that the subpoena did not call for production of that document (and in any event SafeWork has a copy of that document).

Claim for Privilege

13. The claim for privilege is based on the “litigation privilege” contained in s 119 of the Evidence Act 1995 (NSW). I reject the submission made by Senior Counsel for Fenner that the privilege claim is to be determined by the common law.

14. Section 131A of the Evidence Act provides as follows:

“Application of Part to Preliminary Proceedings of Courts

(1) If—

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than ss 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of the court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a requirement to produce a document under Division 1 of Part 4.6.”

15. The defendant by force of the subpoena served by the prosecutor is therefore subject to a “disclosure requirement” to produce a document which would result in the disclosure of information protected by “client legal privilege” pursuant to Div 1 in Pt 3.10 of the Evidence Act. The defendant has objected to providing the allegedly privileged documents, which means that pursuant to s 131A(1), the court must determine the objection by applying the provisions of Pt 3.10.

16. Sections 117 and 119 of the Evidence Act are found in Pt 3.10 of that Act.

17. Section 117 of the Evidence Act contains the following relevant definitions:

“confidential communication means a communication made in such circumstances that, when it was made–

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared–

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

18. Section 119 of the Evidence Act provides:

“119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of–

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

19. In Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [79] Bellew J set out nine general principles applicable to a claim for privilege.

20. The party who claims the privilege bears the onus of establishing privilege: ASIC v Rich [2004] NSWSC 1089.

21. Section 119 of the Evidence Act applies a dominant purpose test (as does the common law). The word “dominant” is used in that sense to describe a purpose that is the ruling, prevailing or most influential purpose: ASIC v Rich [2004] NSWSC 1089; R v Rogerson (No 31) [2016] NSWSC 195.

22. Whether a particular purpose is dominant will be a question of objective fact: Singapore Airlines v Sydney Airports Corporation Limited [2004] NSWSC 380 at [35]. The subjective purpose of a communication or document, although not conclusive, may remain a relevant consideration: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998.

23. The relevant time for ascertaining the purpose is the time at which the document was created: ASIC v Rich [2004] NSWSC 1089.

Three years of inactivity

24. SafeWork and the solicitors for Fenner engaged in correspondence in late September 2022 concerning the claim for legal professional privilege (LSG-2 pp 18-19). The question of access to the material over which Fenner claimed privilege was not agitated prior to the directions made on 11 February 2025, which required, in effect, SafeWork to finalise its tender bundle by 5 May 2025.

25. The evidence shows it was not until the solicitor for SafeWork wrote to an officer for SafeWork on 19 September 2025 (PX 1 p 11) that attention was turned to again questioning the validity of the claim for privilege.

26. No explanation has been provided by SafeWork why the question of privilege was left in abeyance for three years.

27. SafeWork has been under an obligation to finalise its tender documents for a large part of this year. Even if SafeWork were to obtain access to additional documents now, if the claim for privilege fails, there could be an issue at the trial as to whether the tender of such documents would be allowed, given the failure of SafeWork to obtain and include them in the tender bundle by May this year, and the absence of an explanation for that failure. It is regrettable that the time of the parties and the Court has been taken up, just days before the trial is to start, with an interlocutory issue which should have been agitated long ago.

The Evidence on the Motion

28. Fenner relied upon two affidavits by its solicitor Ms Schafer-Gardiner. Her first affidavit was affirmed on 3 October 2025 (DX 1) and her second affidavit was affirmed on 21 October 2025 (DX 2). A bundle of documents marked “LSG-2” was exhibited to DX 1.

29. SafeWork tendered a folder of documents (PX 1).

Sequence of Relevant Post-Incident Events

30. On 23 February 2023 Inspector Williams received a text from Mr Latham “regarding safety meeting” (PX 1 p 9).

31. On 23 February 2022 Inspector Williams spoke to Ms Deni Murray (NSW Health & Safety Advisor – see PX 1 p 15) in relation to an “Internal Investigation” being conducted by Fenner (PX 1 p 9). A statement had been obtained from Brad, a labour hire worker, who had provided first aid on site. Fenner had been “unable to get statements from anyone else for ICAM”.

32. ICAM is an acronym, defined in the Fenner “Incident Reporting & Investigation Standard” (PX 1 p 43) as “a systematic process, software, and training for finding the actual/real root causes of problems”.

33. On 4 March 2022 Mr Stuart Milliken, then the chief financial officer (CFO) of Fenner, requested solicitors to provide ongoing legal advice in respect of the incident that occurred on 13 February 2022 at the Boral Cement Works (LSG-2 p 1). Mr Milliken specifically stated that the solicitors were to provide advice as to whether Fenner had potentially contravened the WHS Act, as well as providing advice in respect of a potential common law claim in relation to the incident.

34. On 7 March 2022 the solicitors corresponded with Mr Milliken, accepting instructions to act for Fenner and provide ongoing legal advice in relation to the matters raised in the initial request (LSG-2 pp 2-4).

35. The solicitors advised Fenner that for the purpose of providing the legal advice, Fenner should urgently conduct an investigation into the incident, which would include interviewing relevant employees and conducting an analysis of the circumstances of the incident. The solicitors advised that all communications should be strictly confidential and that witnesses should be advised that the investigation was strictly confidential. The content of any communications and documents connected with the investigation should not be disclosed to any person other than the solicitors, and three directors of Fenner - Mr Milliken, Mr Graham Lenz and Mr Steve Abbott.

36. On 10 March 2022 Mr Abbott sent an email to Mr Bennett (PX 1 p 19). The email was copied to Ms Vicki Wust (General Manager – Safety, Training & Technical – see PX 1 p15), Mr Cameron Trott (Mechanical Engineer – see LSG-2 p 16), and Ms Emma Mulhern (Injury Management Coordinator – see PX 1 p 10). All were Fenner employees. The email said:

“Subject: Questions for tomorrow

Hi Doug

As discussed, please see attached some questions for tomorrow’s meeting.

As I mentioned we are just trying to fill in the gaps to assist us in making changes to prevent it happening again.

It will just be Vicki and me.

Thanks

Steve

Steve Abbott

Chief Operating Officer”

37. The questions which were attached to the email are reproduced at PX 1 p 20. Questions 1 – 14 seem designed to elicit from Mr Bennett his recollection of events leading up to and during the incident. Question 15 in the list is:

“What do you think should have been done differently?”

38. This final question echoes what Mr Abbott said, when he told Mr Bennett “We are just trying to fill in the gaps to assist us in making changes to prevent it happening again.”

39. It is noted that the email from Mr Abbott to Mr Bennett sent on 10 March 2022 was copied to three persons who were outside the list of persons who could received confidential material created as a result of the investigation requested by Fenner’s solicitors.

40. There is no evidence as to whether or not there was a meeting held on 11 March 2022 between Mr Bennett, Mr Abbott and Ms Wust. Senior Counsel for Fenner informed the Court that his instructions were that there was no meeting held, so there was no meeting record. At this point it was conceded that the correct response to par 2 of the subpoena was “nothing to produce”, and the challenge to par 2 of the subpoena was abandoned.

41. On 15 March 2022 Mr Cameron Clark (Branch Manager - Wollongong) sent an email to Mr Bruce Latham, Ms Kathryn Hartnett, Mr Dean Beltrame, Mr Mick Gauci and Ms Murray (PX 1 p 17) asking Mr Gauci to obtain statements from the work crew and a copy of the lift plan. He also said: “We will get a statement from Doug hopefully shortly when he is well enough”.

42. On 30 March 2022 Inspector Brendan Williams spoke to Ms Murray. The Inspector’s notebook entry is at PX 1 p 25. Ms Murray gave an update on Mr Bennett’s recovery. After setting out information concerning Mr Bennett’s physical state, the notebook says:

“Stated that they recorded Doug in order to make a statement of events for the day of incident.”

43. The note does not record when such statement was recorded or the purpose for recording such statement.

44. On 31 March 2022 Mr Milliken sent an email to the solicitors advising that the internal investigation was still being finalised (LSG-2 p 5). Mr Abbott had left the business of Fenner. The email advised that Ms Wust and Mr Trott were part of the investigation.

45. On 18 August 2022 SafeWork issued a notice under s 155(2) of the WHS Act to Fenner, requiring it to provide certain information concerning a claim for legal professional privilege over “the complete copy of the ICAM Investigation” (LSG-2 pp 11-12). The request asked for answers to specific questions concerning the claim for legal professional privilege. A response was provided under cover of a letter from the solicitors dated 1 September 2022 (LSG-2 pp 13-17). The claim for privilege was maintained.

46. On 15 September 2022 SafeWork sent a letter to the solicitors with some “clarifying questions” in relation to the claim for privilege (LSG-2 p 18). The solicitors responded by letter dated 27 September 2022, declining to answer the additional questions (LSG-2 p 19). Again, the claim for privilege was maintained.

47. SafeWork sent a letter dated 23 September 2025 which enclosed the subpoena which is the subject of the present dispute (PX 1 p 49). The covering letter attempted to deal with the privilege claim in admirably plain English. The letter pointed out that if Fenner obtained statements or commenced an internal investigation prior to the commencement of the privileged investigation from 7 March 2022, then any statements and documents obtained between 14 February 2022 and 6 March 2022 would not be subject to privilege. Fenner does not dispute this assertion.

The Recording of Mr Bennett (Paragraph 3 of the Subpoena)

48. Paragraph 3 of the subpoena refers to “the recording of Douglas Bennett that Deni Murray told Inspector Brendan Williams, on or about 30 March 2022, was obtained in order to make a statement of events on the day of the incident.”

49. Document 3 set out in the table at par 4 of DX 2 refers to a statement of Mr Bennett “taken as a Teams Call Statement on 23 March 2022.” This was first created as a Word document on 2 May 2022 and converted to a pdf document on 4 August 2022.

50. In the decision of Bellew J referred to above, his Honour set out a series of nine propositions to summarise the principles governing privilege claims over documents. Proposition 3 in that list was as follows:

“The party claiming the privilege must recognise the need for focused and specific evidence in order to ground the claim. Verbal formulae, and bare conclusory assertions of purpose, are insufficient. A court determining a claim for privilege should, where possible, be assisted by evidence of the thought processes behind, or the nature and purpose of, the document(s) or communications(s) over which the claim is made: Barnes v Commission of Taxation [2007] FCAFC 88; 242 ALR 601 at [18]-[19] (Tamberlin, Stone and Siopsis JJ) citing Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337, and National Crime Authority v S (1991) 29 FCR 203; [1991] FCA 234.”

51. No evidence has been called to say that the statement of Mr Bennett was recorded for the purpose of preparing the confidential investigation report for submission to the solicitors.

52. No evidence has been called by Fenner concerning the nature and purpose of the document being the statement of Mr Bennett taken during the Teams Call on 23 March 2022. Was it a statement taken by the investigation team for consideration only as part of the investigation report requested by the solicitors? If so, prima facie it would be privileged. Or was it a statement taken for the purposes of Mr Abbott set out in his email dated 10 March 2022 – “to assist in making changes to prevent it happening again”? If so, prima facie it would not be privileged.

53. There is no evidence who was present during the Teams Call.

54. There is no evidence that Mr Bennett was informed that what he said on the Teams Call was for the purpose of preparing a confidential report.

55. There is no evidence that Mr Bennett was informed that he should keep confidential anything which was discussed during the Teams Call.

56. There is no evidence that Mr Bennett’s statement was passed on to the authors of the privileged report, or that the authors took it into account.

57. Fenner bears the onus of establishing that the statement of Mr Bennett taken as a result of the Teams Call on 23 March 2022 was a privileged document.

58. It is plain from the evidence that there were two investigations going on.

59. There was an investigation directed to find out the root cause of the incident. This investigation started before Mr Milliken requested legal advice on 4 March 2022 and continued after that date.

60. As recited above, on 23 February 2022 Inspector Williams spoke to Ms Murray in relation to an “Internal Investigation” being conducted by Fenner (PX 1 p 9). A statement had been obtained from a labour hire worker who had provided first aid on site. Fenner had been “unable to get statements from anyone else for ICAM”.

61. This root cause investigation was ongoing. The email from Mr Abbott dated 10 March 2022 to Mr Bennett demonstrates this because:

62. The stated purpose of the email had nothing to do with conducting an internal investigation to obtain legal advice.

63. The stated purpose of the email was to obtain assistance with the operational issue of Fenner trying to prevent such an event happening again.

64. All three employees of Fenner copied into the email were not in the confidentiality circle at that time.

65. Ms Mulhern was the Injury Management Coordinator, and she never played any part in the investigation requested by the solicitors.

66. There was nothing in the email dated 10 March 2022 to indicate that the meeting was to obtain information in connection with a privileged investigation.

67. There was nothing in the email of 10 March 2022 to advise Mr Bennett that he was being requested to participate in a meeting for the purpose of obtaining legal advice and that he should keep his involvement in the meeting confidential.

68. The email sent on 15 March 2022 by Mr Clark was sent to employees of Fenner who clearly had nothing to do with any privileged investigation (with the exception of Ms Wust, who joined the privileged investigation some time after it commenced – see letter dated 31 March 2022 (LSG-2 p 5)).

69. By 30 March 2022 Ms Murray seemed to know about the taking of the statement, but there is no indication in the evidence as to whether or not she was part of the Teams Call or was playing any role at that time in preparing the confidential investigation report for the solicitors. The evidence does show that she was receiving emails about the root cause investigation which was going on. In any event, Ms Murray was not a person within the confidentiality circle, even when that was expanded by a letter dated 1 April 2022 to include Mr Trott and Ms Wust (LSG-2 pp 8-10). It could well be that Ms Murray simply knew that there had been a statement recorded. But it could also be the case that Ms Murray played some part in recording the statement or hearing it recorded. The evidence is simply silent.

70. As recited above, the onus is on Fenner to prove that Mr Bennett’s statement was taken for the dominant purpose of obtaining legal advice. Given that there were two investigations going on simultaneously, Fenner has not discharged its onus to show that the dominant purpose for recording Mr Bennett’s statement on 23 March 2022 was for the purpose of creating a privileged report so as to obtain legal advice. It has not called any “focused and specific evidence” in order to ground the claim. The statement could have been taken for either investigation, or for both. We simply do not know.

71. I find that the documents the subject of par 3 of the subpoena are not protected by legal professional privilege. It follows that I will grant SafeWork access to those documents. However, I was asked by Senior Counsel for Fenner to stay the operation of my decision until the start of the trial to give Fenner the opportunity to consider this judgment.

The ICAM Reports (Paragraph 4 of the Subpoena)

66. The ICAM reports over which Fenner claims privilege are described in DX 2 par 4 as “DRAFT V4 2.05.22” and “DRAFT V5 28.07.22”. These versions were thus created two months after Fenner was advised by its solicitors to conduct an investigation over which legal professional privilege could be claimed.

67. On 1 September 2022 the solicitors for Fenner supplied a response (LSG-2 pp 13-17) to a Notice issued pursuant to s 155 of the WHS Act. The response was signed by Mr Milliken on behalf of Fenner. The response said:

68. The draft incident report was prepared by Fenner in accordance with a request by its solicitors and had been maintained on a confidential basis.

69. The purpose of the draft report was to obtain legal advice.

70. Ms Wust and Mr Trott were the primary authors of the report.

71. The report had been maintained on a confidential basis and only certain nominated individuals had been given access to the report.

72. The contents of the report had not been extracted into any other document.

73. There is no evidence to cast doubt on the answers given in response to the Notice.

74. I find that the chain of correspondence exhibited to DX 1, and this response, establishes that the May and July 2022 drafts of the investigation report are privileged and thus SafeWork cannot have access to them.

Orders

70. The orders of the court are:

71. Grant SafeWork NSW access to and inspection of the documents produced in answer to paragraph 3 of the subpoena issued on 23 September 2025.

72. Stay the operation of Order (1) until 11-30am on 27 October 2025.

73. Refuse to grant SafeWork NSW access to and inspection of the documents produced in answer to paragraph 4 of the subpoena issued on 23 September 2025.

74. The documents the subject of Order (3) are returned to the defendant’s solicitors.

75. Costs of and incidental to the issue which is the subject of this judgment are reserved.

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