Lawyers for the owners of Whakaari/White Island say they are enduring a “manifestly unfair trial” and are attempting to get charges levelled against them in the wake of the eruption stayed.

A stay in proceedings is a ruling by the court that halts further legal process.

Back in May, ahead of the trial which began in July, Judge Evangelos​​ Thomas ruled against Andrew, James and Peter Buttle’s claims they would not be able to receive a fair trial, though he did also criticise some aspects of the WorkSafe process.

Citing the Health and Safety at Work Act 2015, Judge Thomas told the court “directors can be prosecuted for failing to do due diligence” and there can be “public interest” in holding directors to account.

The Buttles, along with their company Whakaari Management Ltd, are currently in the middle of a four-month trial with other defendants in front of Judge Thomas.

Forty-seven people were on the crater when it erupted on December 9, 2019, with 22 dying from extreme burns and blast injuries.

On Thursday, lawyers for the Buttles sought a judicial review of Judge Thomas’ decision in front of Justice Jane Anderson at the High Court at Auckland, which was opposed by Worksafe.

Simon Foote, KC, said WorkSafe charged the Buttles at the last minute without an expert report and were only given three days to respond.

The lawyer submitted there was a “derailment of process” and the Buttles are now enduring a “manifestly unfair trial” which could not be repaired and should be terminated.

WorkSafe did not properly particularise the charge details, Foote said.

Foote said defendants are entitled to clearly know the case against them.

Justice Anderson asked Foote why this was such an exceptional case, and queried why it can’t wait for an appeal.

He said there were a number of reasons and without fault of the Buttles they have had to incur stress, costs and the risk of conviction.

“The process has significantly derailed and pretty obviously derailed...the court should step in now as opposed to letting the appeal rights proceed,” Foote said.

Michael Hodge, acting on behalf of WorkSafe, submitted the Buttles did not do reasonable due diligence to take steps to assess risks.

“We can show the Buttles failed to do fundamental types of due diligence.”

Hodge submitted the Buttles should be making their arguments at trial and on appeal if they are convicted not in a judicial review.

Justice Anderson reserved her decision.

-Catrin Owen/Stuff.