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

SafeWork NSW initiated proceedings against Fenner Dunlop Australia Pty Ltd in the NSW Supreme Court, contesting the admissibility of certain documents under the client legal privilege. The primary dispute revolved around the interpretation and application of legal privilege to documents produced in response to a subpoena issued by SafeWork NSW. The Court was required to determine whether Fenner Dunlop had successfully demonstrated that the documents in question were protected by legal privilege, thereby preventing their disclosure and use in evidence.

The central legal issue before the Court was whether Fenner Dunlop had discharged the onus of proving that the documents were subject to legal privilege. This involved assessing the dominant purpose test, which examines whether the primary intention behind the creation of the documents was to obtain or give legal advice. The Court had to scrutinise the documents in question to ascertain if they were indeed created for the purpose of obtaining or providing legal advice, and if so, whether they were protected by privilege.

In its judgment, the Court held that Fenner Dunlop had not met the requisite standard to establish legal privilege for the documents in question. The Court found that the dominant purpose of the documents was not to obtain or provide legal advice but rather to document operational procedures and business activities. Consequently, the Court granted SafeWork NSW access to the documents that were not protected by legal privilege, while refusing access to those that were. The Court also ordered that the privileged documents be returned to Fenner Dunlop's solicitors. Finally, the Court reserved costs associated with the issue under consideration in this judgment.