SafeWork NSW v JBS Australia Pty Ltd (No. 2)

[2023] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v JBS Australia Pty Ltd (No. 2) [2023] NSWDC 145

Hearing dates:

19 April 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The application made by the defendant to set aside the subpoena issued on 24 January 2023 is refused.

(2)   The documents produced pursuant to par 2 of the subpoena are the subject of client legal privilege and the prosecutor cannot have access to such documents.

(3)   Order that the prosecutor is to have access to the documents produced in response to pars 1 and 3 of the subpoena, which are in a sealed envelope in the court file marked “Access not to be granted pending further order of the court”.

(4)   Order that the sealed envelope in the court file marked “Subject to Client Legal Privilege” be returned to the solicitor for the defendant, who shall keep and preserve such documents pending the conclusion of the trial.

(5)   Costs of the Notice of Motion filed by the defendant on 28 February 2023 are reserved.

Catchwords:

CRIMINAL PROCEDURE — subpoena — objection to production of material — companion rule — whether applies to subpoena issued to defendant for production of documents — abrogation of accusatorial system of criminal justice — discovery — client legal privilege

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Criminal Procedure Act 1986 (NSW), s 222

Evidence Act 1995 (NSW), ss 17, 118, 119, 131A, Pt 3.10

Supreme Court (General Civil Procedure) Rules 2005 (VIC)

Work Health and Safety Act 2011 (Cth), s 32

Work Health and Safety Act 2011 (NSW), ss 19, 32, 155, 171

Cases Cited:

CFMEU v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375

Commissionerfor 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

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
JBS Australia Pty Ltd (Defendant)

Representation:

Counsel:
J Agius SC with N Read (Prosecutor)
A Moses SC with P Sharp (Defendant)

Solicitors:

Department of Customer Service (Prosecutor)
Loupe Legal Pty Ltd (Defendant)

File Number(s):

2022/40927

Judgment

Introduction

1. The prosecutor SafeWork NSW (SafeWork) filed a Summons in this court on 11 February 2022 alleging that the defendant JBS Australia Pty Ltd (JBS) had committed an offence under the Work Health and Safety Act 2011 (NSW) (the WHS Act).

2. The proceedings have come before this court from time to time for directions. On 29 August 2022 the parties appeared before Judge Scotting and the defendant entered a plea of not guilty.

3. The matter has been set down for trial for three weeks before Judge Scotting, commencing on 31 July 2023.

4. SafeWork issued a subpoena to JBS on 24 January 2023.

5. JBS filed a Notice of Motion on 28 February 2023 seeking to set aside that subpoena, or in the alternative, seeking to restrict access to documents produced in response to the subpoena.

6. In support of that Notice of Motion JBS relied upon the following evidence:

1. Affidavit of J Hall dated 27 February 2023 (DX 1).

2. Affidavit of J Davey dated 27 February 2023 (DX 2).

3. Affidavit of S Das dated 27 February 2023 (DX 3).

7. The prosecutor relied upon the following evidence:

1. Affidavit of I Houston dated 14 March 2023 (PX 4).

2. Exhibit ILH-1 to the affidavit of I Houston dated 14 March 2023 (PX 5).

8. The parties filed the following written submissions:

1. Defendant’s Written Submissions filed on 13 April 2023 (MFI 5).

2. Prosecutor’s Written Submissions filed on 28 March 2023 (MFI 6).

9. In response to the subpoena JBS produced documents which have been placed in a sealed envelope in the court file and marked “Access not to be granted pending further order of the court”. JBS also produced a second folder of material which has been placed in a sealed envelope in the court file and marked “Subject to Client Legal Privilege”.

Allegations in the Summons

10. The Summons filed on 11 February 2022 pleads that on 19 February 2020 at the Caroona Feedlot at Caroona in NSW, JBS had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking.

11. Further, SafeWork pleaded that JBS failed to comply with that duty and the failure to comply exposed workers, in particular Belinda Fletcher, to a risk of death or serious injury contrary to s 32 of the WHS Act.

12. The particulars were set out in Annexure “A” to the Summons. SafeWork alleged that the work carried out at the feedlot involved unloading hay bales from trucks, moisture-testing hay bales and stacking hay bales. Two front-end loaders were used to handle the hay bales.

13. SafeWork pleads that on 19 February 2020 Ms Belinda Fletcher, who was employed by JBS as a Commodities Clerk, was moisture-testing hay bales. She was directed to undertake that work by the JBS Livestock Supervisor. Front-end loaders were operating in the vicinity of Ms Fletcher. As she was working, SafeWork alleges that two bales of hay, weighing approximately 670kg each, were dislodged from a stack and fell on Ms Fletcher. SafeWork alleges that Ms Fletcher was struck, crushed and trapped by the falling hay bales and suffered serious injuries.

14. The risk was pleaded in par 11 as follows:

“The risk was the risk of a hay bale (or hay bales) falling and striking, crushing and/or trapping a worker whilst undertaking the task of moisture testing.”

15. Paragraph 12 of Annexure A pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“12.   The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Ms Fletcher, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a.   Undertaking a risk assessment, or adequate risk assessment, on the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales to identity the risks associated with the tasks, assess the risks and determine the control measures that most effectively eliminated or minimised the risks;

b.   Developing, implementing and enforcing safe work procedure for moisture testing which specified:

i.   The Mill Supervisor (or delegate) is to determine where the hay should be unloaded and tested before being stacked onto a pad;

ii.   Moisture testing is only to take place when all bales had been unloaded from the truck and no machinery is operating in the vicinity of the unloaded bales, in particular FELs;

iii.   Workers are not to undertake moisture testing at the face of a stack that is being constructed on the pad;

iv.   Workers must not be in the vicinity of the FEL while it is unloading or stacking hay;

v.   All bales are to be moisture tested prior to the FEL commencing to form the stack on the pad;

vi.   The moisture tester is to leave the area before the FEL commences forming the stack on the pad;

vii.   If access is required to the FEL operating area, pedestrians must get visual and/or verbal approval from the FEL operator before doing so. The FEL must cease operation while pedestrians are in the area and resume operations only after receiving confirmation that all pedestrians have left the area;

viii.   Appropriate Personal Protective Equipment is to be worn, including a high visibility shirt of vest;

c.   Developing, implementing and enforcing safe work procedure for stacking hay bales which specified;

i.   The Mill Supervisor (or delegate) is to determine where the hay should be unloaded and tested before being stacked onto a pad;

ii.   Prior to unloading the truck, an assessment is to be made of the condition of the bales in order to determine the maximum stack height. Stacks are to be kept to a limited height as directed by the relevant supervisor;

iii.   Workers must not be in the vicinity of the FEL while it is unloading or stacking hay;

iv.   If access is required to the FEL operating area, pedestrians must get visual and/or verbal approval from the FEL operator before doing so. The FEL must cease operation while pedestrians are in the area and resume operations only after receiving confirmation that all pedestrians have left the area;

v.   The FEL operator is to unload the bales and place them on the ground, away from the pad, in stacks to a maximum of three-high for moisture testing;

vi.   Once all the bales have been unloaded, the FEL operator is cease operations and grant access to the area to the person undertaking moisture testing;

vii.   Once the moisture testing has been completed and the tester has left the area, the FEL operator is to commence stacking the bales onto the pad;

viii.   Bales should be stacked in an offset manner to ensure the stack is secure;

ix.   Hay is to be stacked on firm level ground. If the bales are stacked on a slope, the stack is to commence from the bottom of the slope and is to be built towards the higher side of the slope;

d.    Providing information, training and instruction to workers on safe work procedures for moisture testing and stacking hay bales, such procedures specifying the matters set out above;

e.   Providing supervision, or adequate supervision, to workers undertaking the tasks of unloading hay trucks, moisture testing and hay stacking to ensure:

i.   Safe work procedures were followed for the tasks, such as the safe work procedures set out in paragraphs (b) and (c) above; and/or

ii.   Adequate separation was maintained between the person operating the FEL and person undertaking the moisture testing; and/or

iii.   Moisture testing and FEL operations were not being undertaken simultaneously;

f.   Appointing a spotter, who had communication with the FEL operator, to prevent persons from entering the FEL operating area.”

The Defendant’s Motion

16. The Notice of Motion filed by JBS on 28 February 2023 sought the following orders:

“1   The Subpoena for Production addressed to The Proper Officer, JBS Australia Pty Ltd issued on 24 January 2023 be set aside.

2   In the alternative to order 1 above, no access be granted to the document responsive to category two of the Subpoena for Production.

3   Costs.

4   Such other order as the Court deems fit.”

The Subpoena

17. A copy of the subpoena is reproduced in DX 1, p 86. The Schedule to the subpoena seeks production of the following documents:

“1    Pay slips for Belinda Fletcher from December 2019 to February 2020 (inclusive).

2.   The internal investigation report conducted into the incident at the Caroona Feedlot on 19 February 2020 titled ‘Belinda Fletcher RCA Investigation Final’, and attachments to that report.

3.   All reports, records and industry notifications concerning: the risk of bales of hay or other fodder falling from stacks, including but not limited to:

a.   any document referring to the suspected cause of the collapse of hay bales on 31 October 2019 and/or 1 November 2019, and

b.   any document as at 19 February 2020 referring to any direction, advice or warning about measures that should be taken to eliminate or minimise the risk that stacked bales may fall or present a risk to the health and safety of persons in the vicinity of the stacking, including any document that refers to or proffers advice or warnings as to how to best stack bales to avoid or minimise the risk of vales falling from stacks.”

18. By a letter dated 3 February 2023 (DX 1, p 95) the solicitor for the defendant took objection, inter alia, to the width of par 3 of the subpoena. In a letter in response dated 8 February 2023 (DX 1, p 97) the solicitor for SafeWork indicated that the prosecutor was prepared to narrow par 3 of the subpoena as follows:

“All reports, records and notifications created between 2018 and 2020 concerning the risk of bales of hay or other fodder failing from stacks at the Caroona Feedlot, including but not limited to:

a.   any document referring to the suspected cause of the collapse of hay bales on 31 October 2019 and/or 1 November 2019; and

b.   any document as at 19 February 2020 referring to any direction, advice, or warning about measures that should have been taken to eliminate or minimise the risk that stacked bales may fall or present a risk to the health and safety of persons in the vicinity of stacking, including any document that refers to or proffers advice or warnings as to how to best stack bales to avoid or minimise the risk of bales falling from stacks.”

19. I will deal with that part of the motion in relation to par 3 of the subpoena, by reference to the narrowed version of par 3. That course was consented to by both parties.

Evidence of Ms Hall

20. Ms Hall is the solicitor for JBS. She received initial instructions on 18 May 2020 from “Joshua Davey, Property Manager/Legal Counsel to act for the defendant in relation to the investigation into the incident that is now the subject of these proceedings”. Ms Hall was asked to provide legal advice to the defendant about what it should do in response to an investigation by SafeWork. Documents were provided to her by JBS between 18 May 2020 and 30 May 2020. Ms Hall received a copy of the investigation report which is the subject of par 2 of the subpoena.

21. Ms Hall annexes to her affidavit a number of notices to JBS served by SafeWork, and a copy of the responses provided by JBS.

22. Ms Hall annexes a copy of the subpoena which is the subject of the defendant’s Notice of Motion, and a copy of the correspondence referred to above, by which the prosecutor narrowed par 3 of the subpoena.

Evidence of Ms Houston

23. Ms Houston’s affidavit exhibits a large bundle of documents being documents produced by JBS under s 171 of the WHS Act, Improvement Notices, correspondence from SafeWork to JBS requesting further documents, notices under s 155 of the WHS Act, responses by JBS to such notices, and correspondence between Ms Hall and SafeWork concerning those documents.

Submission 1: The Companion Rule

24. The High Court in Lee v The Queen (No. 2) [2014] HCA 20; (2014) 253 CLR 455 at [32]-[33] (Lee No. 2) said the following concerning the companion rule:

“32   Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

33   The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.”

(Emphasis added)

25. JBS acknowledged that there was no case in which the companion rule had been invoked to set aside a subpoena served upon a defendant after a prosecution had been commenced. JBS relied upon the underlined words in the quote from Lee No. 2 set out above which, read alone, are wide enough to suggest that a defendant charged with a criminal offence cannot be compelled to comply with a subpoena, and are wider than the preceding sentence, which states that a defendant cannot be compelled to testify.

26. To ascertain whether the companion rule is as wide as submitted by JBS, it is necessary to examine in detail the authorities cited by JBS in support of its submission.

Environment Protection Authority v Caltex Refining Co. Pty Ltd

27. Environment Protection Authority v Caltex Refining Co. Pty Ltd [1993] HCA 74; (1993) 178 CLR 477(Caltex) was the first decision of the High Court which used the phrase “companion rule” in the context of the criminal law. Mason CJ and Toohey J said at 502-503:

“Accepting that, notwithstanding this difference, the privilege [against self-incrimination] does protect the individual from being compelled to produce
incriminating books and documents, it does not follow that the
protection is an essential element in the accusatorial system of
justice or that its unavailability in this respect, at least in
relation to corporations, would compromise that system. The
fundamental principle that the onus of proof beyond reasonable doubt
rests on the Crown would remain unimpaired, as would the companion
rule that an accused person cannot be required to testify to the
commission of the offence charged.”

(Emphasis added)

Lee No.2

28. In Lee No. 2 two persons were summoned to appear before the New South Wales Crime Commission to give evidence. They were not excused from answering any question on the ground that the answer could incriminate or tend to incriminate them. The statute governing the Crime Commission provided that the Commission might direct that evidence given before it should not be published if, inter alia, such publication might prejudice the fair trial of a person who had been or might be charged with an offence.

29. One of the witnesses gave evidence and a non-publication order was made. The second witness gave evidence but there was no non-publication order. However, the Crown accepted that such an order should have been made.

30. Both men were charged with criminal offences. They were convicted. Before the commencement of their joint trial, the transcripts of the evidence which the men had given before the Commission were unlawfully published by the Commission to the police and to officers of the Director of Public Prosecutions (DPP).

31. It was in this context that the High Court made the statements reproduced above from pars 32 and 33 of the plurality judgment. It is to be noted that in par 32 the High Court said that even though a privilege against self-incrimination may be lost, the principle remains that the prosecution must prove the guilt of an accused person. This principle is an aspect of the accusatorial nature of a criminal trial. In the present case JBS, being a corporation, has no privilege against self-incrimination. However, the fundamental principle remains that the prosecutor must prove the guilt of JBS.

32. JBS in its submissions relied very much upon par 33 of Lee No. 2, and in particular the sentence: “The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof”.

33. Firstly, it must be noted that this sentence follows immediately on from the statement of the companion rule, where the High Court said:

“The companion rule to the fundamental principle is that an accused person cannot be required to testify.”

34. In Lee No. 2 the evidence unlawfully published to the police and the DPP was testamentary evidence given by the two men to the Commission. It was testimony, not documents.

35. The statement that the prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof, must be understood in the context of the previous sentence, which forms the ratio of the High Court’s decision – a person cannot be required to testify against himself in their own criminal trial. Further, if the second sentence is to be understood as authority for the wider proposition (as put by JBS) then it is obiter dicta.

34. To fully understand par 33 of the decision of the High Court in Lee No. 2, one needs to have regard to the footnotes. Including footnotes, par 33 is as follows:

“The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof (29). Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution (30), a protection which cannot be waived (31).”

37. Footnote (29) gives a reference to Lee v NSW Crime Commission (2013) 251 CLR 196 (Lee No. 1). This was an earlier case involving the same two defendants named Lee. The case concerned an application made to the Supreme Court of NSW by the NSW Crime Commission under the Criminal Assets Recovery Act 1990 (NSW). The Commission had applied to have the two men examined before the Supreme Court. They objected to being examined on the ground that the Criminal Assets Recovery Act did not empower an examination about conduct in respect of which there were pending criminal charges. The plurality judgment in the High Court held that the statute empowered the Supreme Court to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person.

38. It can be seen that Lee No. 1 was concerned not with documents, but with requiring a defendant already charged with a criminal offence to give evidence on oath ie to testify. The sentence in Lee No. 2 “The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof” is thus accompanied by a footnote referencing an earlier case involved solely with requiring an accused person to testify.

39. Footnote (30) in par 33 in Lee No. 2 refers to the Evidence Act 1995 (NSW) s 17(2). This subsection provides:

“A defendant is not competent to give evidence as a witness for the prosecution.”

40. The footnoted reference to s 17(2) of the Evidence Act is a further indication that Lee No. 2 was concerned with whether or not a person could be required to testify against their own interest in a criminal trial.

41. Finally, footnote (31) in par 33 in Lee No. 2 refers to the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [51]. There the High Court said that the protection afforded by s 17(2) of the Evidence Act could not be waived.

CFMEU v Boral Resources (Vic) Pty Ltd

42. The next case relied upon by JBS is the decision of the High Court in CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 (CFMEU). In that decision a plurality of the High Court referred to Lee No. 2 and said at [36]:

“It is well established that the accusatorial nature of a criminal trial means that, under the common law, the onus of proof is upon the prosecution to prove its case. As a corollary, under the common law, the prosecution cannot compel the accused to assist it to discharge its onus.”

43. In CFMEU six companies filed a summons in the Supreme Court of Victoria seeking orders that the CFMEU, a union, be punished for contempt of court. The companies alleged that, by establishing a blockade of a construction site, the union had disobeyed orders previously made the Court. In the contempt proceedings those companies applied for an order pursuant to the Supreme Court (General Civil Procedure) Rules 2005 (VIC) requiring the union to make discovery of particular documents.

44. The High Court held that the principle that an accused person cannot be compelled to assist the prosecution to discharge its onus of proof did not provide a basis for the union to resist an order for discovery of the documents.

45. After referring to Lee No. 2, the High Court said:

“37   Two points may be made here. First, the companion principle described in Do Young Lee v The Queen is not, as the appellant argued, a corollary of the criminal standard of proof. Rather, it is an ‘aspect of the accusatorial nature of a criminal trial in our system of criminal justice’ whereby an accused person cannot be compelled to assist the prosecution to make its case. The companion principle is a ‘companion’ of criminal trials, not of the standard of proof ordinarily applicable in such trials.

38   Secondly, no question arises under r 29.07(2) of the Rules as to the appellant being required to give evidence against itself as a witness for the prosecution. The documents required to be discovered speak for themselves. In the nature of things, such documents have been brought into existence in the course of the conduct of the corporation’s affairs by or through other (natural) persons acting in the service of the corporation. In such a case, the concerns that testimonial admissions may be extracted by oppressive conduct and that confessions of dubious reliability will be adduced do not arise. If such concerns were to arise in different circumstances, they would fall to be considered as part of the discretion conferred by the rule.”

46. In relation to par 37, it must be noted that the High Court held that the contempt proceedings were civil proceedings and not a criminal trial – at [47]. Thus the companion rule had no application.

47. However, it is to be noted that requiring a defendant to produce documents did not equate to requiring a party to give evidence against itself, as a witness for the prosecution. The High Court noted that the documents were those brought into existence as part of the union’s everyday affairs. There was no concern that some form of “testimonial admission” might be extracted by “oppressive conduct”, or that “confessions of dubious reliability will be adduced”. This is a further indication that the companion rule is concerned only with testimony.

48. I note that the three categories of documents sought by the subpoena in the present case would also (subject to the claim for client legal privilege) be documents which JBS would bring into existence in the course of its everyday affairs.

49. Thus while the High Court recognised the existence of the companion rule as a corollary of the accusatorial nature of a criminal trial, the ratio of the decision was that neither the accusatorial principle nor the companion rule had any application to the contempt proceedings which were brought in a civil claim and not a criminal trial. The decision in CFMEU did not in any way expand the scope of the companion rule.

Commonwealth of Australia v Helicopter Resources Pty Ltd

50. JBS also referred to the decision of the High Court in Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 270 CLR 523 (Helicopter). The case involved an incident in Antarctica when a pilot employed by Helicopter Resources Pty Ltd (Helicopter Resources) died after falling into a crevasse on an ice shelf. Helicopter Resources was charged with a summary criminal offence under s 32 of the Work Health and Safety Act 2011 (Cth). There was a coronial inquest. The coroner issued a subpoena to the Chief Pilot of Helicopter Resources to attend to give evidence at the coronial inquest. Helicopter Resources brought proceedings for judicial review of the coroner’s decision to issue a subpoena, on the basis that requiring the Chief Pilot to give evidence would prejudice Helicopter Resources in the criminal proceedings and undermine the accusatorial nature of the criminal process.

51. The High Court held that compulsory pre-trial examination of a potential witness other than the accused is not inconsistent with the accusatorial system of criminal justice in Australia. The general rule that an accused cannot be required to assist the Crown in proof of its case had no application – Helicopter at [17].

52. In a fashion similar to the decision in CFMEU, the decision in Helicopter did not expand the companion rule as set out in Lee No. 2. The particular evidence which was the concern of the defendant in Helicopter was testimony and not documents, in any event.

NSW Food Authority v Nutricia Australia Pty Ltd

53. JBS also relied upon the earlier decision of the Court of Criminal Appeal in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 (Nutricia). In that case a prosecuting authority attempted to administer interrogatories to an accused. The Court said that because the administration of detailed interrogatories for the purpose of proving elements of an offence the subject of extant criminal charges is such a significant impingement upon the integrity of the courts, Parliament should not be understood to intend that a statutory power can be so deployed, in the absence of a clear statement to that effect. In the absence of such legislative intention, the administration of interrogatories could be a contempt of court. In the end result, the Court found that there was such a legislative intention.

54. Straight away it can be seen that Nutricia concerned testimony (as interrogatories are answers to questions, which are verified on oath). It must be understood against the background of later High Court decisions (discussed above) that speak of the companion rule as being a rule that defendants cannot be forced to assist a prosecutor to prove its case by forcing the accused to testify against itself. Nutricia is not an authority in relation to subpoenas or production of documents.

Consideration

55. As discussed above, the companion rule as recognised by the High Court in Lee No. 2 was a decision that an accused person could not be required to give evidence or testify against themselves in a criminal prosecution. Nowhere in Lee No. 2 or CFMEU, cited in par 13 of MFI 5, is there a proposition that “a subpoena may not be used as a device by a prosecutor to compel an accused to provide information for the purposes of the proceedings”.

56. As previously recited, JBS acknowledged that there was no case which had applied the companion rule to production of documents rather than the giving of evidence by an accused.

57. As the High Court said in obiter dicta in CFMEU at [38], the requirement for documents to be produced is not a requirement for a party to give evidence against itself as a witness for the prosecution. The High Court in that paragraph recognised that the companion rule is there to guard against testimonial admissions being extracted by oppressive conduct or a confession of dubious reliability being adduced.

58. SafeWork submitted (MFI 6, par 17) as follows:

“In complying with the subpoena, the defendant corporation is not creating evidence against itself – the documents which it is required to produce are business records and already exist. There is nothing fundamental to the accusatorial system of criminal justice that requires an accused corporation to be free from its own documents being used against it.”

59. I accept this submission.

Conclusion on Submission 1

60. In my view, based upon my analysis above of the key authorities, the companion rule is limited to prohibiting a prosecutor requiring an accused to testify against itself. I reject the submission of JBS that the companion rule means that the issue of a subpoena for production of documents, even after a prosecution has been commenced, is a breach of the accusatorial system of justice, requiring the subpoena to be set aside.

Submission 2: Does the Subpoena Abrogate the Accusatorial System?

61. JBS submitted that the power of a Registrar of the District Court to issue a subpoena in relation to a criminal trial is a statutory power, conferred by s 222(1) of the Criminal Procedure Act 1986 (NSW) (the CP Act).

62. JBS further submitted (MFI 5, par 12) that by using a subpoena to obtain documents from the defendant, the prosecutor is invoking the court’s coercive powers to obtain an advantage that could not otherwise be obtained under the rules of procedure applicable to the trial, which are contained in the preliminary disclosure regime in Div 2A of the CP Act.

63. JBS further submitted (MFI 5, par 13) that “the Registrar’s power to issue a subpoena should be read subject to the limitation imposed by the companion rule as recognised by the High Court”, referring to Lee No. 2 and CFMEU.

Conclusion on Submission 2

64. Submission 2 made by JBS was dependent upon Submission 1 being accepted, and in particular upon submitting that this court should find, for the first time, that the companion rule extended to production of documents on subpoena, and was not restricted only to testimony. For reasons set out above I have rejected that submission, and thus I reject Submission 2.

Submission 3: Does the Subpoena seek Discovery?

65. JBS submitted (MFI 5, par 17) that par 3 of the subpoena seeks discovery from the defendant as it requires the defendant to exercise judgment as to which of its documents fall within it. A subpoena may not be used to obtain discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575.

66. While there was complaint made about par 1 in the subpoena, JBS did not submit that par 1 was so wide as to constitute discovery. Nor was such a complaint made about par 2 in the subpoena.

Consideration

67. The modified version of par 3 (which confines the request to the years 2018-2020 and to the Caroona Feedlot) is hardly a request for discovery. The categories of documents requested clearly relate to the specific incident which is the subject of the prosecution (par 3a of the subpoena) and to the pleaded risk and to measures which were known to JBS which could have been taken to eliminate or minimise the risk (par 3b of the subpoena).

Conclusion on Submission 3

68. I reject the submission that the subpoena should be set aside because it seeks discovery.

Submission 4: Client Legal Privilege

69. The submission of JBS was as follows:

“19.   This claim is advanced in relation to Category 2 of the Subpoena which only needs to be determined if the companion rule contention is not upheld.

20. The privilege claim is governed by Pt 3.10 of the Evidence Act as the Subpoena is caught by s 131A(2)(a). Sections 118 and 119 of the Evidence Act are found in Pt 3.10 of that Act.

21.   Privilege is claimed on two bases. First, on the basis that it was created for the dominant purpose of obtaining legal advice. Second, it was created for the dominant purpose of being put before the Defendant's in-house counsel with the object of obtaining his advice about what the Defendant should do in the circumstances and in particular, how it should respond to questions from Safe Work NSW about the incident.

22. Section 118 of the Evidence Act states:

‘118 Legal Advice

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 made between the client and a lawyer, or

(b)   a confidential communication made between 2 or more lawyers acting for the client, or

(c)   the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.’

23. Section 119 of the Evidence Act states:

‘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.’

24.   A dominant purpose is a reference to ‘the ruling, prevailing, or most influential purpose’. It is a purpose that predominates over other purposes; the prevailing or paramount purpose. The purpose for which a document is brought into existence is a question of fact that must be determined objectively from the nature of the communication, the content of the communication, the relevant context and the relationships between the parties; however, evidence of the subjective purpose will be relevant and often decisive. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence. It is the purpose of the communication at the time it was made that must be considered. Ordinarily the relevant purpose will be that of the author of the document or the person under whose direction the document was produced. The onus of establishing that privilege applies is on the person asserting the privilege.

25.   An in-house solicitor is entitled to claim privilege on behalf of his or her employer as a client.

26.   Legal advice includes formal advice as to what the law is and professional advice as to what should prudently or sensibly be done in a relevant legal context.

27.   Litigation privilege extends to protect from disclosure confidential communications passing between a client, their lawyer and third parties for the dominant purpose of use in or in relation to pending or anticipated proceedings or to conduct or aid in the conduct of, litigation in reasonable prospect. Legal proceedings will be anticipated only where there is a ‘real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not’. The ‘real prospect of litigation’ must exist at the time of the relevant communication.”

Evidence of Ms Das

70. Ms Das is employed as a legal counsel by JBS in its in-house legal team. Her role is to provide legal advice to JBS and its associated entities on a range of general commercial issues. Ms Das is admitted as a legal practitioner in Queensland.

71. In par 7 of her affidavit Ms Das says:

“On 19 February 2020 at 11.17am I sent an email to the investigations team asking them to investigate an incident at Caroona Feedlot involving the testing of moisture in a hay bale ‘for the primary purpose of [JBS Australia] obtaining legal advice, including present and future compliance with relevant legislation and regulations’. Annexed to this affidavit and marked ‘B’ is a copy of the email.”

72. Ms Das cannot recall who asked her to send the email, but at the time Ms Jacinta Dale and Mr Joshua Davey were the lawyers employed by JBS who usually provided legal advice on work health and safety matters. Ms Das used a template to prepare the email. Apart from sending the email requesting that the investigation be commenced, Ms Das had no further involvement in the matter.

73. Ms Das was not required for cross-examination.

Evidence of Mr Davey

74. Mr Davey was admitted as a legal practitioner in Queensland in 2006. He commenced working for JBS as Legal Counsel/Property Manager in October 2019. He reported to Ms Jacinta Dale, General Counsel and Company Secretary. In January 2020 Ms Dale was away on maternity leave, and Mr Davey was then the most senior lawyer in the legal team.

75. On 19 January 2020 Mr Davey was out of the office when he received a telephone call from Mr Griffin regarding an incident at the Caroona Feedlot in which a worker had been injured.

76. Mr Davey said the following in his affidavit:

“11   I formed the view that the incident was serious and that there was a real possibility that JBS could be investigated by SafeWork NSW because at that time, in January 2002, JBS was being prosecuted by SafeWork NSW for a death that had occurred on that same site on 16 February 2017. JBS had retained Seyfarth Shaw and senior and junior counsel in relation to that previous incident. JBS had also been prosecuted in Tasmania following an incident and I had been liaising with Hall & Wilcox and junior counsel who were representing JBS in that matter at the time.

12   I advised Ms Griffin and Mr Pratt on the legal risk that JBS could be investigated about the incident and recommended that JBS commence an investigation into the incident so that further legal advice could be provided. I said to Ms Griffin and Mr Pratt words to the effect of: ‘I think the risk is significant enough to warrant an investigation to be conducted under a privilege protocols’.

13   Because I was still in the meeting, I telephoned Ms Das and asked her to send an email putting in place a protocol for the conduct of the investigation. I told her that there was a template email that she should use. The protocol required an investigation report to be prepared and sent to me as JBS Legal Counsel.”

77. Mr Davey eventually received a copy of the investigation report commissioned by the email from Ms Das. Mr Davey made the decision to retain Ms Hall as the solicitor for JBS to advise in relation to the incident. Mr Davey assisted JBS to prepare its responses to various notices issued by SafeWork in connection with the incident. He did not share the investigation report with anyone until Ms Hall was engaged in mid-May 2020. He had not disclosed the contents of the report to anyone other than Ms Hall. Mr Davey ceased his employment with JBS in September 2022.

78. Mr Davey was not required for cross-examination.

Submissions for the Defendant

79. The key submission of JBS was as follows:

“33.   The dominant purpose of the document was to inform Mr Davey of what had occurred and enable him to provide advice to Defendant, consistently with his duties as in-house counsel, which required him to advise the Defendant on all aspects of the law, including work health and safety matters. Such advice included how to respond to an investigation by Safe Work NSW and whether the Defendant should obtain specialist advice from an external lawyer. The dominant purpose of the document was to enable Mr Davey to advise JBS ‘as to what [it] should prudently and sensibly [do] in the relevant legal context’.”

Submissions for the Prosecutor

80. The prosecutor’s submissions are fully set out in par 25 of MFI 6. The key submission is that the actions of Mr Davey were “indicative of putting in place an artificial construct designed to attempt to protect a document that would otherwise have been brought into existence for operational reasons”. To similar effect was the oral submission made by senior counsel for SafeWork that the commissioning of the report by an in-house lawyer was an attempt to “cloak” the report with client legal privilege.

Consideration

81. Mr Davey’s evidence, that he perceived a real risk of prosecution and that he saw that there was a need for JBS to have legal advice, stands unchallenged. His evidence is that the dominant purpose for commissioning and creating the report was to provide legal advice to JBS upon a health and safety issue, which was a matter within his remit. The way the investigation was commissioned, and the way in which the resulting report was treated and used, adds weight to my ultimate conclusion, which is set out below.

Conclusion on Submission 4

82. I find that the documents produced in response to par 2 of the subpoena are documents to which client legal privilege attaches. As a result, SafeWork cannot inspect these documents and they will be returned to JBS, to be kept securely, pending the outcome of the trial listed before Judge Scotting.

Costs

83. JBS asked for costs to be reserved. SafeWork asked for costs to be costs in the cause, but that was on the basis that the entire Notice of Motion should be dismissed. Since both parties have achieved a mixed result, I will reserve costs.

Orders

84. The orders of the court are:

1. The application made by the defendant to set aside the subpoena issued on 24 January 2023 is refused.

2. The documents produced pursuant to par 2 of the subpoena are the subject of client legal privilege and the prosecutor cannot have access to such documents.

3. Order that the prosecutor is to have access to the documents produced in response to pars 1 and 3 of the subpoena, which are in a sealed envelope in the court file marked “Access not to be granted pending further order of the court”.

4. Order that the sealed envelope in the court file marked “Subject to Client Legal Privilege” be returned to the solicitor for the defendant, who shall keep and preserve such documents pending the conclusion of the trial.

5. Costs of the Notice of Motion filed by the defendant on 28 February 2023 are reserved.

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Decision last updated: 10 May 2023