SafeWork NSW v Paul Whitmarsh (No.2) - [2025] NSWDC 86

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Paul Whitmarsh (No.2) [2025] NSWDC 86
Hearing dates: 26 March 2025
Date of orders: 27 March 2025
Decision date: 27 March 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) Order that AWB Contractors Pty Ltd and Australian Wharf and Bridge Pty Ltd produce to the Court the documents listed in the subpoenas issued to each company.

Catchwords:
CRIMINAL PROCEDURE – Subpoena – Objection to production of material – Privilege against self-incrimination – Single director of a company

Legislation Cited:
Work Health and Safety Act 2011 (NSW)
Corporations Act 2001 (Cth)

Cases Cited:
AWA Ltd v Daniels (1992) 7 ACSR 759
Meneses v Directed Electronics Pty Ltd [2019] FCAFC 190
R v Ronen [2004] NSWCCA 67
Re City Equitable Fire Insurance Co Ltd [1925] Ch 407

Texts Cited:
Gooley et al, Corporations and Associations Law, Lexus Nexus 7th Edition para 30.49.

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Paul Whitmarsh (Defendant)
Representation:
Counsel:
Mr M Cahill (Prosecutor)
Mr I Latham (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Wotton Kearney (Defendant)

File Number(s): 2023/27880
Publication restriction: Nil

JUDGMENT

Background

On 27 January 2021 AWB Contractors Pty Ltd (AWB) was attempting to lift a steel yacht for the purpose of salvage and disposal. During that process the crane lift failed when the mast of the yacht broke. One of the workers, Mr Haywood, was struck in the head by the mast, and suffered fatal injuries.
AWB was charged by the prosecutor SafeWork NSW (SafeWork) with a breach of its health and safety duty pursuant to s 19 of the Work Health and Safety Act2011 (NSW) (the WHS Act). Mr Whitmarsh was separately charged by SafeWork under s 27 of the WHS Act, the allegation being that he failed to exercise due diligence to ensure that AWB complied with its health and safety duty, and the failure to comply with the duty exposed workers to a risk of death or serious injury contrary to s 32 of the WHS Act.
AWB pleaded guilty and is yet to be sentenced.
Mr Whitmarsh pleaded not guilty. His trial is due to commence before me on 31 March 2025.
In preparation of the prosecution case, SafeWork has advised the defendant of the documents which it proposes to tender. Some of those documents have been obtained during the investigation of the incident by SafeWork, pursuant to coercive powers. SafeWork wishes to tender some of those documents at the hearing of the trial of Mr Whitmarsh. Mr Whitmarsh has indicated that he will object to the tender of some of the documents. SafeWork requested to be advised of the basis of the objection, and Mr Whitmarsh, as is his right, declined to give advance notice of the objections.
With a view to proving that the documents which SafeWork does hold are business records (which may facilitate their tender into evidence at the trial) SafeWork has issued two subpoenas, one to AWB and one to an associated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWDC 86
Decision Date: 27 March 2025

CaseChat Overview and Summary

SafeWork NSW filed proceedings against Paul Whitmarsh, a director of AWB Contractors Pty Ltd, and its parent company, Australian Wharf and Bridge Pty Ltd, seeking an order that the companies produce a number of documents listed in subpoenas issued to each company. SafeWork NSW alleged that the companies had failed to comply with occupational health and safety obligations in relation to a project undertaken by AWB Contractors. Whitmarsh objected to the production of the documents on the basis that they were privileged against self-incrimination and that he, as a single director of AWB Contractors, was not obliged to produce documents that might incriminate him. The court was required to determine whether Whitmarsh’s objection to the production of the documents was valid and, if not, whether an order should be made for their production.

The court held that Whitmarsh’s objection to the production of the documents was not valid. The court found that the privilege against self-incrimination did not apply to the production of documents in the circumstances of this case, as the documents were not sought for the purpose of using them as evidence against Whitmarsh in criminal proceedings. The court also found that Whitmarsh, as a director of AWB Contractors, was obliged to produce documents that were relevant to the matters in issue in the proceedings, regardless of whether they might incriminate him. The court held that Whitmarsh’s position as a single director did not affect his obligation to produce documents that were relevant to the matters in issue in the proceedings.

In light of the above, the court ordered that AWB Contractors and Australian Wharf and Bridge produce to the court the documents listed in the subpoenas issued to each company. The court noted that the order was not intended to prejudice any rights that Whitmarsh may have as a director of AWB Contractors, but was made in the interests of justice and to ensure that the proceedings could proceed effectively. The court also noted that Whitmarsh was entitled to seek an order for indemnity against AWB Contractors if he was ultimately prejudiced by the production of the documents.

Orders

Orders of the court

(1) Order that AWB Contractors Pty Ltd and Australian Wharf and Bridge Pty Ltd produce to the Court the documents listed in the subpoenas issued to each company.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Paul Whitmarsh (No.2) [2025] NSWDC 86
Hearing dates:	26 March 2025
Date of orders:	27 March 2025
Decision date:	27 March 2025
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Order that AWB Contractors Pty Ltd and Australian Wharf and Bridge Pty Ltd produce to the Court the documents listed in the subpoenas issued to each company.
Catchwords:	CRIMINAL PROCEDURE – Subpoena – Objection to production of material – Privilege against self-incrimination – Single director of a company
Legislation Cited:	Work Health and Safety Act 2011 (NSW) Corporations Act 2001 (Cth)
Cases Cited:	AWA Ltd v Daniels (1992) 7 ACSR 759 Meneses v Directed Electronics Pty Ltd [2019] FCAFC 190 R v Ronen [2004] NSWCCA 67 Re City Equitable Fire Insurance Co Ltd [1925] Ch 407
Texts Cited:	Gooley et al, Corporations and Associations Law, Lexus Nexus 7th Edition para 30.49.
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Paul Whitmarsh (Defendant)
Representation:	Counsel: Mr M Cahill (Prosecutor) Mr I Latham (Defendant) Solicitors: Department of Customer Service (Prosecutor) Wotton Kearney (Defendant)
File Number(s):	2023/27880
Publication restriction:	Nil