Court delay 'a complete and utter waste of time' - Judge

KiwiRail has been charged under the Health and Safety Act with failing to take any action or practicable steps to ensure its employees were safe and not harmed while working in the tunnel. Photo / File

A District Court judge has slapped down a pending case against KiwiRail over alleged poisonous fumes in a South Island after the state-owned enterprise sought a hearing to dispute some of the facts.

Judge David Saunders described the delay as "a complete and utter waste of court time" after indicating he would enforce a timetable to disclose disputed facts prior to KiwiRail entering pleas to two of four representative charges.

The charges relate to the risk to workers of carbon monoxide poison fumes in the Otira Tunnel, between Otira and Arthur's Pass, on November 6, 2013.

The rail operator has been charged under the Health and Safety Act with failing to take any action or practicable steps to ensure its employees were safe and not harmed while working in the tunnel. The same charges were laid in relation to KiwiRail contractor, MBD Contracting Ltd.

In the Greymouth District Court yesterday, KiwiRail disputed some facts and was seeking a hearing for that.

Representing Worksafe NZ, lawyer Marcus Zintl said a disputed facts hearing would have "no useful purpose", particularly as a conviction would carry no penalty under the law for a Crown agency.

Judge Saunders noted that four weeks had already been set aside to hear the case, which had been pending since June last year.

He said he was reluctant to waste further court time and indicated he would impose time limits to ensure the facts were clarified "within a month", before transferring the case to the Wellington District Court.

Mr Zintl said Kiwi Rail could not be fined as a result of any prosecution, there was no recourse for reparation and there were no 'victims'.

However, Worksafe was still seeking to have a prosecution entered.

Judge Saunders then asked what was the point "of all this palaver".

"I'm going to require you people to identify what is in dispute ... Is KiwiRail so precious about their record that they don't want a conviction entered?"

The principle behind the prosecution was "to ensure the safety of workers", Judge Saunders said, noting the court's main concern would be if workers had been exposed to carbon monoxide poisoning in the Otira Tunnel.

Mr Zintl said Worksafe was satisfied that KiwiRail had now taken steps to mitigate the risk.

The judge said it was time to "put up and shut up", giving Kiwi Rail until October 16 to identify disputed facts, with an indicative court date of December 14, in Wellington.