Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search


Judgment: Osborne v Worksafe New Zealand



16 February 2017



(CA735/2015) [2017] NZCA 11


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

[1] The Court of Appeal has today dismissed an appeal brought by Ms Osborne and Ms Rockhouse, whose husband and son respectively were killed in the Pike River coal mine disaster. Ms Osborne and Ms Rockhouse sought judicial review of a decision by Worksafe New Zealand not to offer evidence against the former chief executive of Pike River Coal Limited (in receivership), Mr Whittall.

[2] The decision of the Court of Appeal upheld an earlier decision of the High Court dismissing the appellants’ application for judicial review.

[3] Prosecutions under the HSE Act were originally brought against three defendants. VLI Drilling International Pty Ltd, a contractor, pleaded guilty to three charges. It was fined $46,800. Pike River Coal Ltd, the mine owner, faced nine charges. It did not defend them. It was fined $760,000 and ordered to pay $3.41 million in reparation to the families of the 29 men killed and to the two survivors.

[4] Mr Whittall faced 12 charges. He pleaded not guilty. In August 2013 Mr Whittall undertook to make a voluntary payment of $3.41 million in the event the prosecution offered no evidence against him. InDecember 2013 Worksafe decided that it would not offer any evidence in support of the charges against Mr Whittall. Judge Farish in the District Court then dismissed the charges against Mr Whittall. In due course the victims’ families received payments totalling $3.41 million from Mr Whittall’s insurer.

[5] Ms Osborne and MsRockhouse subsequently applied for judicial review of the prosecution decision not to offer evidence in relation to the charges involving Mr Whittall and the District Court decision to dismiss them.In particular, Ms Osborne and MsRockhouse claimed the decisions were an unlawful bargain to stifle a prosecution in exchange for payment. That argument was rejected by the High Court.

[6] In upholding the High Court decision, the Court of Appeal has found the decisions were lawfully made. There was no express or tacit indication by the prosecution that MrWhittall’s proposal would necessarily be accepted. Accordingly, there was no unlawful agreement to stifle the prosecution by payment of money. As a matter of law, the prosecutor was entitled to consider and give weight to a conditional reparation undertaking as one factor in deciding whether or not to pursue the prosecution further. Worksafe was found by the Court to have properly and independently considered Mr Whittall’s reparation undertaking, amongst other factors, in concluding it was no longer in the public interest to pursue prosecution of Mr Whittall.

[7] The Court noted that even if the prosecution decision had been shown to be unlawful, it would not have set it aside. The $3.41 million payment had been made and irretrievably transferred to the victims’ families. The Court would however have considered granting declaratory relief only, had unlawfulness been established.

Full judgment: Osborne_v_Worksafe.pdf

© Scoop Media

Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell:
On War Crimes And The Afghan Insurgency

Truly, with friends like former defence Minster Wayne Mapp, the SAS does not need enemies. At the very least, the Hit and Run book has raised the possibility that the New Zealand SAS committed war crimes in the attack they led in Afghnistan upon the villages of Naik and Khak Khuday Dad...

Mapp’s attempted defence of the SAS on RNZ this morning unintentionally indicated that collective punishment was baked into the planning exercise for the raid, and also into how the raid proceeded on the ground. More>>


Little Heading For Court: Apology Over Donation/Hotel Contract Claims Not Accepted

Today I want to publicly apologise unreservedly to Mr Hagaman for any hurt, embarrassment or adverse reflection on his reputation which may have resulted from my various media statements. I have offered that apology to the Hagamans. More>>


Biscuit Tin Of Democracy: World Heritage Site Protection, Ombudsman and Equal Pay Bills Drawn

On Thursday, 23 March 2017 three places are available on the Order Paper for the first reading of a Member’s bill. The ballot was held, and resulted in the following bills being drawn... More>>


Emissions Plan: NZ Needs More Science, More Trees, Fewer Beasts

A combination of technology breakthroughs, much more plantation forestry, and a big switch away from pastoral, particularly dairy farming, are identified as the key elements of any approach New Zealand takes to reducing its carbon emissions to a net zero level, according to a new report sponsored by the New Zealand chapter of GLOBE, a multi-party, global parliamentary grouping. More>>


"Backed To Win Seats": Labour Māori Seat MPs Won't Stand On List

The Labour Party is backing a request from its Māori seat MPs to stand as electorate MPs only, says Labour Leader Andrew Little. More>>

OutsKey: John Key's Valedictory Speech

I rise to address this House for the very last time. It has been a huge privilege to have served the people of Helensville as their member of Parliament, and, of course, the people of New Zealand as their Prime Minister. More>>


Productivity Commission: New Models Of Tertiary Education Are Coming

The report is a broad-ranging inquiry into how well New Zealand’s tertiary education system is set up to respond to emerging trends in technology and the internationalisation of education, and changes in the structure of the population, and the skills needed in the economy and society... More>>


PM's Press Conference: Water Everywhere

Monday's Post-Cabinet press conference focused on water, with the Prime Minister fielding questions about the possibility pricing water taken for export. Mr English said the government was directing their water allocation technical advisory group to include export water in considerations. More>>


Get More From Scoop



Search Scoop  
Powered by Vodafone
NZ independent news