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Whakaari owners lose High Court battle to have charges dismissed

8 Sep 2023

| Author: Anna Longdill

Judicial review – challenge to District Court decisions declining applications for dismissal/stay of health and safety charges –sufficiently exceptional case where judicial review is appropriate?

Buttle v District Court at Auckland [2023] NZHC 2279 per Anderson J.


Peter, James and Andrew Buttle (the Buttles) were directors of Whakaari Management Ltd (WML) which managed Whakaari White Island. Following the eruption of Whakaari on 9 December 2019, the Buttles were charged with breaching their duties as officers of WML, contrary to s 44 of the Health and Safety at Work Act 2015 (HSWA).

The original charging documents alleged the Buttles failed to take four reasonable steps, which closely mirrored the wording of s 44(4)(a), (b), (c) and (d) of the HSWA.

In April 2022, the Buttles applied for dismissal of the charges under s 147 of the Criminal Procedure Act 2011 (CPA) or a stay of proceeding.  They contended the charging documents were defective as not meeting the requirement in s 17(4) of the CPA that the defendants be fully and fairly informed of the substance of the charge, relying on Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198.

In October 2022, Judge Evangelos Thomas dismissed the application, characterising the case as one where no steps were taken by the Buttles.

In subsequent correspondence between the parties’ solicitors, WorkSafe confirmed its case was that the Buttles had taken no reasonable steps, not that they did not take any steps at all.

In May 2023, the Buttles filed a further application to dismiss the charges, arguing it would be an abuse of process for WorkSafe to depart from the case as confirmed in the October ruling.

Judge Thomas held that in all but “one respect” he would have found an abuse of process on the application before him; if WorkSafe now wished to argue the Buttles took some steps but failed to take others, it needed to particularise those other steps.  The “one respect” related to an allegation the Buttles failed to take reasonable steps to ensure appropriate resources were available to minimise risks to health and safety. Judge Thomas considered the summary of facts fully informed the Buttles about that allegation.

The charges were subsequently amended, confining them to this one allegation.

The Buttles applied to judicially review the District Court decisions alleging error of law, breach of natural justice, failure to take into account relevant considerations, taking into account irrelevant considerations, error of fact, and unreasonableness. The relief sought was for the High Court to stay the District Court proceeding. WorkSafe applied to strike out the proceeding.

By the time the judicial review was heard, the District Court trial had commenced.


Applicable principles: judicial review – challenge to District Court decisions declining applications for dismissal/stay of health and safety charges – trial now underway – threshold question of whether this is a sufficiently exceptional case where judicial review is appropriate – will there be irremediable prejudice? – has there been systemic misconduct by WorkSafe that would justify a stay of proceedings?


Held: The application for judicial review is dismissed. The threshold for judicial review of a pre-trial criminal ruling is not met. This is not a truly exceptional case justifying intervention.


Note: Subsequent to this decision, the Buttles succeeded in having their charges dismissed by Judge Thomas at the conclusion of WorkSafe’s case at the trial in the Auckland District Court.

Buttle v District Court at Auckland [2023] NZHC 2279

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