Australia, April 27 -- New South Wales Land and Environment Court issued text of the following judgement on March 27:

1. 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.

2. 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 Act 2011 (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.

3. AWB pleaded guilty and is yet to be sentenced.

4. Mr Whitmarsh pleaded not guilty. His trial is due to commence before me on 31 March 2025.

5. 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.

6. 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 company Australian Wharf and Bridge Pty Ltd (Australian Wharf).

7. Mr Whitmarsh has a privilege against self-incrimination. The two companies which are the subject of the subpoena have no privilege against self-incrimination. The question to be decided is whether Mr Whitmarsh can rely upon his individual privilege against self-incrimination to prevent him being required to search for the documents which are the subject of each subpoena (MFI 1, para 4). The subpoenas

8. Both subpoenas are in identical form. Each requires the company to produce 44 documents. The documents are not described by category. The Schedule to each subpoena lists each document by reference to its title. For example, document 9 is "AWB SWMS 7-Safe Crane Operations." Most of the documents in the Schedule are SafeWork Method Statements. A small number of the documents are minutes of toolbox talks. As previously recited, SafeWork already has copies of each of the 44 documents, but has issued these subpoenas to assist in proof of the provenance of each document.

9. I will consider each company separately, as AWB is in liquidation, whereas Australian Wharf is an existing company of which Mr Whitmarsh is the sole director (DX 1).

AWB Contractors Pty Ltd (in liquidation)

10. Mr Whitmarsh, as the sole director of AWB, placed the company into voluntary administration in October 2024. AWB is now in liquidation and is subject to the control of two liquidators. Its name has been changed to ACN 102 299 409 Pty Ltd. I will continue to refer to the company as AWB. Mr Crispino and Mr Albarran were appointed as liquidators on 29 November 2024 pursuant to a creditors voluntary winding up (PX 1, Tab 4).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195d573b12181d1f273308fd)

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