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Court finds abuse of process in Pike River documents row

17 May 2024

| Author: Sonia Pinto

Harder v Worksafe New Zealand [2024] NZHC 940- per Grice J

 

In 2017 the Supreme Court declared that an arrangement reached by WorkSafe New Zealand (WorkSafe) to offer no evidence on charges against Peter Whittall, the director and chief executive officer of Pike River Coal Ltd, was unlawful. (Osbourne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447).

The court found that a conditional payment of $3.41 million had been made by Whittall into the court by way of reparation in return for WorkSafe withdrawing the charges against him.

Christopher Harder, a former lawyer, filed an interlocutory application to the High Court seeking discovery orders against Worksafe for documents in respect of the voluntary reparation payment made in connection with the charges against Whittall.

Harder has indicated that he intends using the discovered documents to prepare an application to recall a judgment of Mallon J. (Re Harder (No 2) [2023] NZHC 620).

Two parents who had lost sons in the Pike River tragedy were seated next to Harder during the hearing to advocate their support for the application.

Harder’s application focuses on a series of letters containing proposals for a settlement.

He claims WorkSafe did not disclose at least one version of these letters, which included two additional conditions related to the reparation payment. This undisclosed version was revealed after Mallon J’s judgment.

Harder is now requesting permission to examine the court documents he has been allowed to access. His goal is to gather evidence to support his various claims about the individuals involved in the plea negotiations.

The hearing was set down to determine whether the High Court had jurisdiction to determine Harder’s application for discovery, given the substantive judicial review proceedings and Harder’s prior access to court documents application have both been finally determined; whether Harder had standing to bring the interlocutory application; and whether the application is an abuse of process.

On the points that the hearing was to determine, it was found that there was no jurisdictional basis for the court to hear the application and that Harder’s application for access to documents had been finally determined by Mallon J. There were no further documents which would be covered by the application held by the court.

In terms of standing, Harder submitted that he was found to have standing as a non-party applicant before Mallon J and that he should be given the same standing for the current application. The court agree to this.

In relation to abuse of process, it was found that Harder submitted in his oral submissions that his aim was to force a reopening of the Pike River mine case, and to perhaps obtain funding for that from a source such as Whittall’s insurer.

To do this, he needed to find evidence that there was wrongdoing in settling the reparation at the time of the withdrawal of proceedings. This evidence would support his intention to recall the application.

It was found that this was an abuse of the court’s process as it sought to use the court process for a purpose that was significantly different from its ordinary and proper purpose.

 

Applicable principles: Senior Courts Act 2016- Senior Courts (Access to Court Documents) Rules 2017- s 57 Evidence Act 2006 – application to access court documents – judicial review -recall of judgment – ‘settlement’ privilege and without prejudice privilege – Ombudsman investigation under Official Information Act 1982- interests of justice – High Court Rules 2016 – procedural impropriety – standing- jurisdictional issues –  application dismissal.

 

Held: The High Court Rules do not confer jurisdiction to hear the application and the issue has already been finally determined by Mallon J in her judgment. Harder did have standing to bring the application. The application was found to be procedurally improper and amounts to an abuse of process.

 

Redacted Harder 2024-NZHC-940 harder v worksafe copy redactions

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