Parent, widow of Pike River casualties fail to force review of decision to drop charges against Whittall

Anna Osborne and Sonya Rockhouse, who lost a husband and a son respectively in the 2010 Pike River Coal mine explosion, have failed in an attempt to challenge the decision of Worksafe to drop charges against mine executive Peter Whittall.

Justice Brendan Brown dismissed their application for a judicial review. They had challenged the legality of Worksafe, formerly the Department of Labour, deciding it wasn't in the public interest to pursue charges against Whittall and, as a result offering no evidence. They also challenged the consequent decision by Judge Jane Farish in the District Court in December 2013 to dismiss all charges against Mr Whittall.

Other parties had previously been charged with various health and safety offences in the leadup to the explosion which claimed 29 lives, including VLI Drilling, which was fined $46,800, and Pike River Coal, which was fined $760,000 and ordered to pay $3.41 million in reparations to the families of those killed and two miners who survived.

But among evidence considered by the court was correspondence that indicates the $3.41 million voluntary payment was proposed by Whittall's lawyer, conditional on the charges against him being dropped. Stuart Grieve QC wrote to the Crown solicitor for Canterbury and Westland in August 2013, in a followup to a without-prejudice meeting on ways to avoid a "very lengthy and expensive trial."

The idea gained legs and Grieve followed up with a lengthier letter in October affirming the offer of a voluntary payment to the families on behalf of directors and officer of Pike River, provided Worksafe dropped the charges against Whittall. As part of the arrangement, Whittall would have a private meeting with the families and survivors and "will convey his personal empathy and condolences." Company directors would be invited to attend.

Any public statement from Worksafe or the Crown about the charges being withdrawn "will be made in terms agreed with me," Whittall's lawyer wrote. The alternative was costly court proceedings that would mean the families wouldn't get such a large payout because the offer "is economically viable only if Mr Whittall's continuing preparation costs can be terminated promptly."

By the end of October 2013, preparations for the prosecution were largely complete, with a total of 92 witness briefs and about 600,000 documents reviewed for disclosure. An affidavit in November 2013 from Keith Stewart, the Worksafe health and safety inspector who had filed the original charges against the company and Mr Whittall, said while there was sufficient evidence to justify a prosecution, the likelihood of success was low because of the unavailability of key witnesses, briefs that were likely to be inadmissible, the potential for a battle by each side's expert witnesses, and the prospect of lengthy and complex pre-trial arguments.

He also noted that the most Mr Whittall could be charged with would result only in a fine, that he was a secondary party to the offending of Pike River Coal which had already been convicted with record fines and reparation, and that the Royal Commission had already completed a comprehensive report on the Pike River Coal Mine tragedy.

Evidence in Justice Brown's decision showed Worksafe officials were concerned about the legality and propriety of considering the offer of the payment. It also shows consideration was given to consulting the families on the proposal but this was ultimately deemed too hard.

Lawyers for Ms Osborne and Ms Rockhouse characterised Worksafe's decision not to call evidence as "the result of an agreement which it made with Mr Whittall to drop all charges in return for a payment of $3.41 million to be made by an insurer", according to the decision. That was denied by Worksafe. The applicants also said that at common law, "an agreement to stifle a prosecution, by for example withdrawing charges in return for a payment, is an unlawful contract and is void on public policy grounds."

(BusinessDesk)