NEMA awarded $40k in costs after WorkSafe’s failed Whakaari prosecution

WorkSafe has been ordered to pay NEMA $40,000 in costs after its failed prosecution following the fatal eruption of Whakaari, a volcanic island off the coast of Whakatāne. Photo / NZME

The National Emergency Management Agency [NEMA] has been awarded $40,000 in costs after a judge revealed WorkSafe stressed NEMA wouldn’t be charged in the aftermath of the Whaakari/White Island volcanic eruption.

But days before the 12-month charging period expired, WorkSafe said it had reconsidered its position and that NEMA was caught by the Health and Safety at Work Act 2015.

It laid charges against NEMA but those charges were eventually dismissed in the High Court, last year.

In the latest judgment by District Court Justice Evangelos Thomas, he said WorkSafe now accepted it did not have grounds to charge NEMA in the first place.

“[NEMA] never deviated from its position that it was not caught by the Act.”

He said as a result, NEMA incurred “significant costs” in attempting to fight the prosecution. Those costs were met by its insurer.

WorkSafe acknowledged an order of some costs was warranted, but opposed an order any larger than $40,000.

“[WorkSafe] acknowledges the complexity and scale of this case, which has resulted in high costs,” Justice Thomas said.

He ordered payment of costs totalling $40,000.

“There is a high public interest in ensuring those who might be liable were charged. There is a high public interest too in ensuring that prosecuting agencies do not become impotent because they fear a costs award.”

Twelve other parties facing health and safety charges as a result of the eruption will go to trial in July, including tourism operators, GNS Science and the island’s owners.

A total of 22 people died as a result of the eruption on December 9, 2019, when 47 people - many international tourists - were sightseeing on the island, off the coast of Whakatāne.

CORRECTION

Justice Evangelos Thomas is a judge of the District Court, not the High Court as this story previously stated.