A Director Cannot Use Personal Privilege to Lock Away Company Safety Records

Editor’s note: This article provides general information about an NSW court decision and WHS governance. It is not legal advice.

The legal question

Can the sole director of a company prevent the production of corporate safety records by arguing that locating or producing them might incriminate the director personally?

The NSW District Court considered that question in SafeWork NSW v Paul Whitmarsh (No. 2) [2025] NSWDC 86. The answer was no, at least where the subpoena is directed to the company and the records can be located and produced without requiring the director to undertake a personally incriminating act.

The decision is important because it separates two things that are easily blurred in small or closely controlled businesses. A director is a natural person who may hold a privilege against self-incrimination, while a company is a separate legal entity that does not hold that privilege.

Being the sole director does not merge the two.

The fatal salvage operation

The proceedings followed a fatal marine salvage operation in New South Wales on 27 January 2021. AWB Contractors Pty Ltd was attempting to lift a submerged steel yacht when the yacht’s mast failed and struck worker Max Haywood, causing fatal injuries.

SafeWork NSW charged AWB with breaching its primary duty under section 19 of the Work Health and Safety Act 2011 (NSW). Paul Whitmarsh was separately charged as an officer under section 27, with SafeWork alleging that he failed to exercise due diligence to ensure the company complied with its WHS duties.

Before the trial, SafeWork issued subpoenas to AWB Contractors and the associated company Australian Wharf and Bridge Pty Ltd. Each subpoena required the relevant company to produce 44 specifically identified documents.

The documents were not described through broad or speculative categories. Each was identified by title and, in some cases, by date. The list primarily comprised safe work method statements, including “AWB SWMS 7-Safe Crane Operations”, together with a smaller number of toolbox meeting records.

SafeWork already held copies of the documents. The subpoenas were issued to help establish their provenance and support their potential admission as business records.

The privilege being claimed

This case concerned the privilege against self-incrimination. It did not concern legal professional privilege, which is a separate protection applying to certain confidential communications created for the dominant purpose of obtaining legal advice or conducting litigation.

Routine operational documents do not become legally privileged merely because they may be inconvenient, incomplete or damaging. A pre-start record, SWMS, toolbox minute, inspection form or risk assessment created as part of normal business operations will not ordinarily attract legal professional privilege simply because a prosecution later arises.

The privilege against self-incrimination is available to natural persons. It protects a person from being compelled to perform an act or provide information that would expose them to a real risk of criminal prosecution or a civil penalty.

A corporation cannot claim that privilege. The two companies receiving the subpoenas therefore remained subject to their obligations to produce documents within their possession or control.

Whitmarsh’s argument

Whitmarsh’s position was that, because he was the sole director controlling the relevant company, the company could only respond to the subpoena through his personal actions. Requiring him to search for and produce the documents would therefore require him to participate in an act capable of assisting the prosecution against him.

The Court accepted the underlying legal concern was legitimate. There may be circumstances in which personally requiring an accused director to search for, evaluate and produce documents on behalf of a company could involve an incriminating testimonial act.

However, that was not what the subpoenas required.

The subpoenas were issued to the companies, not personally to Whitmarsh. The Court also found there were available mechanisms through which the companies could comply without requiring Whitmarsh to conduct the search or personally produce the material.

Why the argument failed

Judge David Russell rejected the proposition that Whitmarsh was the only person capable of responding to the subpoenas. A director can appoint an independent person to perform the administrative task of locating and producing company records.

In relation to AWB Contractors, the company was in liquidation. Its books and records were company property under the control of its liquidators, meaning Whitmarsh was neither required nor entitled to personally control their production.

Australian Wharf and Bridge presented a different issue because Whitmarsh was its sole director, secretary and shareholder, and the company had no employees. Even then, the Court found he could appoint a solicitor, another proper officer or, if necessary, a receiver to identify and produce the documents.

The precision of the subpoenas mattered. The 44 documents were listed by title rather than described through broad categories requiring someone to interpret their meaning, assess their relevance or make judgements about whether they fell within the subpoena.

An independent person could be given the company’s records, compare the document titles against the schedule and produce the matching documents. That process did not require Whitmarsh to explain where the records were kept, acknowledge their authenticity, describe how they had been used or personally select material potentially damaging to his defence.

Drawing upon the NSW Court of Criminal Appeal’s reasoning in R v Ronen [2004] NSWCCA 67, the Court observed that appointing another person to answer the subpoena would not itself involve an incriminating admission:

“All it would show would be that a director of the corporation was ensuring that the corporation itself obeyed its legal obligations.”

The Court ordered both companies to produce the documents. Importantly, it found there was no evidence that the search or production had affected Whitmarsh’s personal privilege, which remained intact.

The decision does not abolish directors’ privilege

The decision should not be interpreted as meaning that directors lose the privilege against self-incrimination whenever company records are sought. Nor does it establish that a court can always compel a director personally to search for and produce documents potentially capable of incriminating them.

The distinction lies in who is being compelled, what act is required and whether that act itself carries an incriminating quality.

A subpoena requiring a company to produce precisely identified documents is different from an order requiring an accused director personally to interrogate records, apply judgement to broad categories, explain search methods or make statements linking themselves to particular documents or decisions.

That distinction may become highly technical during an investigation or prosecution.

Organisations and directors should obtain legal advice before responding to a subpoena, regulator notice or other compulsory demand, particularly where individual and corporate interests may diverge.

What the decision does establish is that a sole-director structure does not make the company immune from document production. Personal privilege cannot simply be extended over corporate records because the director happens to be the only person ordinarily controlling them.

Delegating production is not delegating due diligence

There is another distinction worth keeping clear. A director may appoint somebody to perform the administrative task of finding and producing corporate records, but an officer cannot delegate away their personal WHS due diligence duty.

Section 27 requires an officer to take reasonable steps to acquire and maintain WHS knowledge, understand the organisation’s operations and hazards, ensure appropriate resources and processes are available, verify that those processes are used, and ensure the organisation complies with its legal obligations.

A solicitor may answer a subpoena. A records manager may retrieve a SWMS. A liquidator may take control of company books. None of those arrangements removes the officer’s personal responsibility to exercise due diligence while the organisation is operating.

The evidence may be produced by somebody else, but the officer’s conduct remains their own.

What the decision means for WHS governance

Safety records are corporate records, not personal papers belonging to whichever manager or director happens to control the business. They should be maintained in a system that permits lawful retrieval, independent verification and controlled production.

An organisation should not be dependent upon one director’s inbox, personal device, memory or filing habits to locate critical WHS documents. That creates an operational weakness before any legal issue arises and becomes particularly problematic after an incident, resignation, liquidation or prosecution.

Document governance should identify where approved SWMS, risk assessments, toolbox records, training evidence, inspection reports and plant records are kept. Access controls should protect sensitive material without making the records inaccessible to authorised personnel.

The organisation should also have a process for responding to regulator notices and subpoenas. That process should preserve documents, prevent alteration or deletion, record who conducted the search, identify the systems examined and ensure potential privilege issues are assessed by a suitably qualified lawyer.

No document should be retrospectively created, amended or “tidied up” following an incident to make the system appear more complete than it was. Apart from compromising the integrity of the investigation, that behaviour can create legal problems substantially worse than the original documentation gap. The photocopier is not a time machine, despite occasional management optimism.

The real value of WHS records

A SWMS or toolbox record should not exist merely as material to be produced after somebody has been killed. Its primary purpose is to influence how work is planned, communicated, supervised and performed before exposure occurs.

However, once an incident happens, those records become evidence of what the organisation understood, what controls it selected, what workers were told and whether the documented system had any connection with the work actually performed.

That is why document control is part of operational control. A company must be able to demonstrate not only that safety documents existed, but that they were current, suitable, implemented, supervised and verified.

The Court’s decision delivers a straightforward message to directors. A corporate structure cannot be used to obtain the benefits of separate legal personality while personal privilege is simultaneously used to prevent the company from meeting its own legal obligations.

The company must answer the subpoena. The director’s personal privilege remains protected, but it does not turn company safety records into untouchable material.

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