The owners of Whakaari/White Island have failed in a bid to get the charges levelled against them in the wake of the Whakaari eruption dismissed – though the judge told them they were 'nearly successful” in their attempt.

At a hearing on Tuesday, Judge Evengelos​​ 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”.

'There can be a public interest in holding directors to account.”

As well as being the island owners, the trio are also directors at Whakaari Management Ltd, and both are being represented by David Neutze.​

Neutze said the WorkSafe case against the Buttles was 'a moveable feast” and also criticised what he said was a 16-month wait to receive documents.

'The prejudice would be extreme if these charges persist,” he said.

'The prejudice is extreme if we have a different case to what we thought.”

It also emerged at the hearing that GNS offered to conduct safety assessments on the Island for the Buttles back in 2013.

'They knew for a fee GNS could do this work,” Worksafe prosecutor Michael Hodge said.

'The Buttles knew about the GNS risk assessment ... they knew there would be a cost ... and they didn't invest the money to meet this cost.”

Hodge said the trio adopted a 'hands-off approach” and that 'they saw it as satisfactory and appropriate to say to the tour operators that's your job”.

Neutze claimed the charging documents did not include specific particularisation, and 'it's too general what's said there”.

'There's only one outcome in the interests of justice is for the charges to be dismissed.”

Judge Thomas said dismissing charges would be an extreme step.

'Would continuing the charges against the Buttles be an abuse of process? No,” he said.

He said that while it went against precedent set in the Talley's case that WorkSafe was required to particularise charge details, he said adequate detail existed in the summary of facts, which defence counsel had access to.

'[WorkSafe] failure was not particularising early enough,” Judge Thomas said.

However, he noted the summary of facts 'fully informs the Buttles all they need to know about the allegation”.

'The Buttles' applications are dismissed, though they were nearly successful.”

-Benn Bathgate/Stuff.