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 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 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)