SafeWork NSW v Paul Whitmarsh (No.2)

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.