Judgment: Osborne v Worksafe New Zealand
COURT OF APPEAL OF NEW ZEALAND
TE KŌTI PĪRA O AOTEAROA
16 February 2017
OSBORNE v WORKSAFE NEW ZEALAND
(CA735/2015)  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.
 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.
 The decision of the Court of Appeal upheld an earlier decision of the High Court dismissing the appellants’ application for judicial review.
 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.
 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.
 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.
 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.
 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