Justice Mallon (High Court) has ruled that Mr Dunbar and Mr Monk, two family members of miners who died in the 2010 Pike River tragedy, may access documents that had been withheld on the grounds that they were covered by legal privilege.
The Health and Safety at Work Act 2015, which replaced the Health and Safety Act 1992, is a regulatory Act and provides that offences of strict liability cannot be contracted out of. In December 2013 there was a settlement that allowed Peter Whittall, the CEO of Pike River Mines, to escape criminal liability in exchange for an ex-gratia payment to families of the 29 deceased miners. The money came from an insurance claim. Several years later the Supreme Court found that the agreement to drop the prosecution in return for the money was illegal, although by then it was too late; Whittall had already fled to Australia.
What’s interesting is that criminal liability was dodged via contract, similar to the use of Section 149 to gag employee whistleblowers and help serious wrongdoers to escape justice. Throughout the following year, 2014, we have seen evidence of Section 149 settlement agreements, otherwise known as Records of Settlement (RoS) used to cover up serious wrongdoing, including one by a child sex offender in Hawkes Bay. 2014 was the year we suspect that evangelising about the “magic” of a RoS at Continuing Professional Development (CPD) employment law seminars was perhaps a little over-enthusiastic. Those preaching the “sanctity and integrity” of the RoS, regardless of how egregious the conduct being hushed-up was, must have been emboldened by the Whittall story, at least for a few years until it was declared illegal. If Whittall had been prosecuted, he could have been questioned about who took the various decisions that led to the deaths of the Pike River miners.
Many parties to such settlements now live with the unfortunate legacy of the justice system being undermined in such a sneaky way. But we believe that former lawyer (and McKenzie friend of Mr Dunbar and Mr Monk) Christopher Harder has done a great job of convincing Justice Mallon that:
[20]… transparency through open justice outweighs the factors that point against disclosure of the documents over which privilege is claimed.
What we are keen to find out is whether any of the ubiquitous Records of Settlement made under Section 149 of the Employment Relations Act 2000 were involved with the supposed resolution of liability for the mine disaster.
This is the second of two decisions by Mallon J. The first, dated 22 December 2022 which should be read with it, is here.
See more on the Whittall payout here: Insurance and Jobs - by Michael S. (leightonassociates.co.nz) - 5 May 2021