Privilege Denied: When Safety Documents Don’t Shield You from Accountability

In a pivotal pre-trial ruling handed down on 7 April 2025, the NSW District Court sent a clear message to company directors: you can’t hide behind privilege to dodge your WHS obligations. The case involved Paul Whitmarsh, sole director of AWB Contractors Pty Ltd and Australian Wharf and Bridge Pty Ltd, who is facing prosecution over a 2021 workplace fatality in Rozelle.

When SafeWork NSW subpoenaed key safety documents—such as safe work method statements (SWMS) and toolbox talk records—Whitmarsh argued that being compelled to produce them would breach his privilege against self-incrimination. The Court rejected that argument, clarifying what directors can and can’t do in the face of a WHS investigation.

The Incident: A Catastrophic Failure in Salvage Safety

In January 2021, AWB was conducting a complex marine salvage job at a Transport for NSW site. Using a crane to lift a submerged steel yacht, the operation catastrophically failed when the yacht’s mast broke, fatally injuring a worker.

SafeWork NSW later issued a safety alert warning all operators to:

• You can use cranes only according to design and capacity.

• Plan lifts thoroughly, accounting for water movement and load variation.

• Avoid makeshift methods like lifting from masts or unverified points.

AWB and Whitmarsh were subsequently charged with breaching the NSW Work Health and Safety Act 2011, including section 27, which outlines the personal duty of officers to exercise due diligence.

The Legal Question: Can a Director Claim Privilege to Withhold Documents?

Whitmarsh argued that producing SWMS and toolbox minutes would force him to incriminate himself—essentially using his position as sole director to block the subpoenas.

Judge David Russell rejected this, finding that:

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

He clarified that Whitmarsh wasn’t being asked to search or produce documents personally—he could appoint someone else to do so. That delegation avoids any self-incriminating act.

Key Takeaways from the Ruling

Legal Point	Implication
Privilege against self-incrimination doesn’t apply if the director delegates document production.	Directors can’t use privilege as a blanket shield.
Subpoenas targeting company records are valid even if the director is the only human link to the company.	Corporate records remain corporate; personal privilege doesn’t block disclosure.
Liquidators control company property once administration begins.	A director has no right to interfere with subpoenaed documents held by liquidators.
Specificity matters: The subpoenas listed exact titles.	Courts favour compliance when the burden is low and clearly defined.

Broader Lessons for Officers and PCBUs

1. You can’t dodge accountability through technicalities.

   
   

   Claiming privilege while simultaneously controlling access to safety systems doesn’t pass legal muster.

2. Directors must be able to demonstrate due diligence—not obstruct it.

   
   

   The more obstructive your approach during investigation, the more damaging it is in court.

3. Safety documents are not optional—they are evidence.

   
   

   Your SWMS, toolbox records, and training logs aren’t just admin—they’re your first line of defence and potential exposure.

4. If your company fails, your duty doesn’t end.

   
   

   Officers remain under scrutiny—even when their company is under liquidation.

Final Word: Safety Doesn’t Stop When the Regulator Calls

This ruling cuts through the murky waters of legal privilege to remind us of a blunt reality: directors are not untouchable, especially when a worker has died. Attempting to withhold safety documents or block investigations only confirms a lack of transparency—and a failure of due diligence.

If you’re in a position of corporate leadership—especially in high-risk operations—this is your wake-up call. Your documents, your systems, and your attitude toward WHS enforcement all matter.

Safety isn’t about hiding. It’s about proving you did everything you should have.

Case Reference: SafeWork NSW v Paul Whitmarsh – NSWDC – 7 April 2025 – Decision Link