WorkSafe decision to drop case against Pike mine boss Peter Whittall 'unlawful': Supreme Court

Thursday, 23 November 2017

The mother of a miner who died at Pike River hopes a Supreme Court ruling will spell the end of 'chequebook justice'. 

The court on Thursday ruled a $3.4 million deal that allowed mine boss Peter Whittall to escape charges was an unlawful bargain.

Two killed miners' families had asked the Supreme Court to overturn a Court of Appeal ruling that upheld a WorkSafe NZ decision in 2013 to drop charges against Whittall as long as he paid $3.41m to the two survivors and families of men who died.

Sonya Rockhouse, who lost her 21-year-old son, Ben, in the 2010 disaster, and Anna Osborne, who lost her husband, Milton, began court action in 2014 seeking a judicial review of the WorkSafe decision. 

**READ MORE

* Andrew Little: Govt may waive health and safety laws for Pike River re-entry

* Pike River families back Andrew Little's appointment to lead re-entry

* Pike River re-entry 'possibly' next year after election results, families say

* Pike River campaigning 'worthwhile' as manned re-entry promised, victim's mother says**

Osborne said Thursday's 'huge victory' was 'a long time coming' and felt 'bloody great'. 

'I've always called it blood money. You should never be able to buy your way out of charges.'

Rockhouse called the Supreme Court decision released on Thursday a 'moral victory'. She was at work, teaching a class, when one of her lawyers phoned with the news. 

'I screamed,' she said. 'I just can't believe it. It's wonderful.'

Rockhouse hoped the decision was the end of 'chequebook justice'.

'If you've got money in this country you can get out of the charges . . . this is going to set a precedent and show you can't.'

Osborne called union stalwart Helen Kelly's widower, Steve Hurring, in tears. She told him: 'She started this off for us and we finally got a win'. 

She was 'incredibly proud' of legal team, Nigel Hampton QC and Simon Meikle, who took the case for no fee. 

The Supreme Court decision does not mean Whittall will be charged. An order to require the prosecution to proceed was no longer an option due to the passage of time, the Supreme Court said. Osborne and Rockhouse accepted this. 

WorkSafe chief executive Nicole Rosie said the court's decision clarified the approach the regulator should have taken, and would take in the future.

'We hope this decision will bring some relief to the families and we will be seeking a meeting with them shortly to discuss the decision,' Rosie said.

'As a result of the families' commitment to their loved ones, New Zealand has new health and safety legislation and a regulatory unit focused on high hazard activities. There is now far greater recognition and commitment to health and safety across the country.'

12 CHARGES DROPPED

Twenty-nine men died when the West Coast coal mine exploded on November 19, 2010. 

Whittall initially faced 12 health and safety charges. All were dropped in December 2013 even though WorkSafe believed it had enough evidence to prosecute. It said the charges were dropped because of public interest considerations.

The mine's owner, Pike River Coal Ltd, pleaded guilty to nine charges in April 2013. It was fined $760,000 and ordered to pay $3.4m in reparations to the two survivors and the families. The company could not pay.

Whittall, who indicated he would fight the charges, offered to make a voluntary payment of $3.41m provided by his insurer if WorkSafe did not proceed against him. WorkSafe eventually agreed.

The Supreme Court ruled the arrangement suggested in 2013 was an agreement to prevent the prosecution and therefore unlawful.

Police had already decided not to press criminal charges against Whittall.

Counsel for Whittall had proposed a voluntary payment instead of a plea bargain, conditional on WorkSafe agreeing not to proceed against Whittall, the court said.

'If accepted this proposal would undoubtedly have constituted a bargain to stifle prosecution. Did the arrangement change in substance? We do not think it did.'

Other factors considered by WorkSafe did not detract from the essential bargain struck, the court said.

It had heard the reason the families were not consulted was because of the risk confidentially would be compromised and the offer withdrawn.

Even if the agreement had been lawful, the court should not be seen to agree that justifications for the WorkSafe decision 'were adequate to pass the supervisory jurisdiction of the court', the Supreme Court said.

NEW AGENCY TO CONSIDER RE-ENTRY

This week Cabinet approved the establishment of the Pike River Recovery Agency to investigate what happened in the 2010 disaster and look into the possibility of manned re-entry of the mine's drift.

The agency will take over Pike River assets from Solid Energy by the time it enters liquidation in mid-March 2018.

The agency will maintain mine infrastructure, manage ongoing mine safety and mine safety while work on re-entry is undertaken.

The Government has put aside $7.6m per annum over three years for the agency's work.

THE VICTIMS

Conrad Adams, 43, Greymouth

Malcolm Campbell, 25, Scotland

Glen Cruse, 35, Cobden

Allan Dixon, 59, Runanga

Zen Drew, 21, Greymouth

Christopher Duggan, 31, Greymouth

Joseph Dunbar, 17, Greymouth

John Hale, 45, Ruatapu

Daniel Herk, 36, Runanga

David Hoggart, 33, Foxton

Richard Holling, 41, Blackball

Andrew Hurren, 32, Hokitika

Jacobus Jonker, 47, South Africa

William Joynson, 49, Dunollie (Australia)

Riki Keane, 28, Greymouth

Terry Kitchin, 41, Runanga

Samuel Mackie, 26, Greymouth

Francis Marden, 41, Runanga

Michael Monk, 23, Greymouth

Stuart Mudge, 31, Runanga

Peter O'Neill, 55, Runanga

Kane Nieper, 33, Greymouth

Milton Osborne, 54, Ngahere

Brendan Palmer, 27, Cobden

Benjamin Rockhouse, 21, Greymouth

Peter Rodger, 40, Greymouth

Blair Sims, 28, Greymouth

Joshua Ufer, 25, Australia

Keith Valli, 62, Winton