NZ Diving skipper seeks compensation after six-year Maritime NZ case dismissed

The victim was still affected by the accident and suffering “ongoing physical consequences”, Judge Evangelos Thomas wrote in a December 2025 judgment.

“It was evident from her testimony the related emotional and psychological consequences continue to play a dark role in her life.”

However, the judge threw out the case after a seven-day trial late last year, ruling that Maritime NZ (MNZ) had failed to prove its case.

In an exclusive interview, the vessel’s skipper and company director, Neil Bennett, told the Herald the past six years had been a nightmare for him and his family. He is angry with MNZ for prosecuting the case and wants compensation for everything he’s lost.

The incident happened as a dive vessel crossed the Mangawhai Bar in 2019.

“I believed I was right all the way through.

“If I’d done something wrong I would have held my hands up but we hadn’t. We had to fight for our name.

“It’s impossible to quantify – the damage to our reputation and everything else. But the harrowing effects physically and mentally are really tough.”

MNZ is defending its decision to prosecute the case, saying the incident resulted in serious harm and there was public interest in laying charges.

“We were, and continue to be, satisfied that filing charges in relation to this incident was the right thing to do,” Deb Despard, deputy chief executive regulatory operations, said.

‘I’ll make stuff up if needed’

Bennett is a stalwart of the industry. Originally from England, he has dived in locations worldwide during a 35-year career and owned Warkworth-based company NZ Diving for 20 years.

He said his firm is committed to health and safety and conscious of its risk management obligations, passing all previous audits with “flying colours”.

On the day in question, he gave his normal safety briefing to the seven paying passengers on board as they headed out to spearfish off the Hen and Chickens Islands.

The conditions were nothing out of the ordinary, he said.

“They were warned that it would be slightly bumpy and to hold on to the support ropes. Unfortunately, the lady didn’t do that.”

As they crossed the bar, a large wave forced the 7m boat to rise from the water. The vessel then crashed back down as it broke through the crest.

Neil Bennett was prosecuted by Maritime NZ over an accident aboard his commercial dive vessel in 2019. Photo / Jason Dorday

The victim was thrown from her seat, suffering serious injuries upon impact. The vessel returned to shore and she was transported to hospital.

The marine regulator launched an investigation. It laid charges against Bennett and his company in 2020, exactly a year after the accident, alleging shortcomings in safety processes.

This included failing to address risks arising from the vessel navigating rough water in its operating plans and procedures, failing to identify the potential for passenger injury in rough seas, and failing to provide a proper safety briefing or ensure passengers were seated safely according to their experience.

Bennett’s lawyer, Brett Harris, applied to have the case dismissed in October last year, arguing a six-year gap between the incident and trial undermined his client’s right to justice and to be tried “without undue delay”.

He also warned that witnesses’ recollections of events may have dimmed over time, highlighting “serious concerns” about email correspondence from a MNZ witness, which read: “I also won’t have anything to add since my written statement, because I don’t remember the day. But I’ll make stuff up if needed.”

Judge Paul Murray dismissed the stay of proceedings application after ruling the trial should proceed. Photo / Alyse Wright

Judge Paul Murray commented: “The defence submit that this is strong evidence that witnesses may be vulnerable to an inability to recall the details or a temptation to ‘fill in the gaps’.”

Harris also argued the accident did not result in death or permanent injury and defendants were entitled to prompt proceedings.

MNZ acknowledged that Bennett and his family had experienced stress from the delays.

However, those delays were because of court resourcing issues and did not undermine the defendant’s fair trial rights, it submitted.

Witnesses had been interviewed in 2020, with briefs of evidence prepared at the time. Some “witness fatigue” was not uncommon during criminal trials, MNZ argued.

In October last year, Judge Murray dismissed the stay of proceedings application, ruling the trial should proceed.

He referenced an affidavit from Bennett that said the ongoing court appearances and auditors’ visits linked to the prosecution had been “harrowing” for his family.

His business had been hit by Covid closures, a ram raid and serious weather events in recent years, seriously impacting the company’s profitability.

Letters were provided to the court from Bennett, his wife and daughter describing the “stress and financial burden” the proceedings had caused.

But the judge said the impacts on Bennett’s family were largely attributable to factors outside the court delays, and he did not believe those delays would render witness memories unreliable or prejudice the defence.

‘Bumpy ride’

The trial commenced on October 30, but in written findings released several weeks later, Judge Thomas ruled MNZ had failed to prove the charges.

Judge Thomas said NZ Diving’s operating plans and procedures had been audited several times by the regulator “without adverse comment” before the accident.

Operators shouldn’t have to question the signals they received from auditors or MNZ, the judge said.

Midnight Diver was also “in survey” at the time of the accident to carry dive trip passengers in inshore areas by seating them on pontoons.

“The survey must contemplate variable and unpredictable sea states given the wide area it covers. It is common sense this in turn contemplates the possibility of encountering an unexpectedly large wave.”

The judge found there was insufficient evidence that Bennett failed to deliver an appropriate safety briefing.

Passengers recalled being alerted to the bar crossing, that they needed to prepare for a “bumpy ride” and hold on tight to the rope.

Treated ‘like a criminal’

Bennett told the Herald he and his company had suffered significant consequences because of MNZ’s actions.

Rather than taking a “sensible” approach, the regulator had embarked on an “interrogation” of him and his company. He claimed he was treated “like a criminal”.

“There was no education. Their attitude was, ‘We’re right, you’re wrong’. They were like, ‘You’re guilty’, even before the trial started.”

He questioned the expense associated with the investigation and trial, “in what was a poorly managed case against us”.

Bennett said the stress associated with the prosecution was overwhelming. If convicted, he could have been jailed for up to a year and his business fined up to $1.5 million.

While dealing with the pending trial, his company was also hit by Covid lockdowns, Cyclone Gabrielle, and a ram raid burglary resulting in tens of thousands of dollars in lost stock.

There had been huge uncertainty for his family and staff.

Company director Neil Bennett says he endured huge stress and financial fallout as a result of the six-year ordeal. Photo / Jason Dorday

“The business didn’t move forward. You’re in a constant state of saying, ‘What’s the point in investing’?, when you know it could all be taken away.”

Bennett said he turned 64 during last year’s trial and spent seven hours giving evidence in his defence.

The relief was palpable when the judge dismissed the case and he was finally able to move on with his life.

However, the long-term damage to his business and reputation was impossible to quantify, Bennett said.

“We haven’t really recovered. I’m 65 and I’m looking to sell the business but I don’t have much to sell.

“We’ve asked for compensation and they’ve basically said, ‘You’ll have to take us to court’.

“They need to have accountability for when they get it wrong and there’s been no accountability.”

Harris said MNZ investigators had to make difficult decisions when someone was injured in a maritime accident.

But he felt the regulator didn’t properly assess the case when deciding to prosecute, and it had continued adding witnesses and new evidence weeks out from the trial.

Harris said delays had affected the integrity of the case. It should have been abandoned when a witness said he could no longer remember the incident and would “make stuff up”.

His client had been put under huge stress, which had a “massive impact” on him, his business and family.

MNZ defends actions, respects court’s decision

Despard defended the regulator and backed the decision to lay charges.

“This incident caused serious harm to the victim, who suffered significant spinal injuries and had still not recovered by the time the trial was scheduled late last year.

“Our decision to investigate and file charges reflected the harm caused to the injured person, the seriousness of the incident, the public interest and whether it met evidential sufficiency.”

Despard acknowledged delays had plagued the case but said they were outside MNZ’s control.

The regulator used a mix of proactive education and corrective enforcement tools when responding to events.

“With all our cases we carefully consider whether the thresholds of public interest and evidential sufficiency continue to be met through the prosecution process. We take our obligations as a prosecuting agency very seriously.”

In terms of compensation, parties could make cost applications to the court.

MNZ respected the court’s decision to dismiss the case and said its thoughts were with the people affected.

Lane Nichols is Auckland Desk Editor and a senior journalist for the New Zealand Herald with more than 20 years’ experience in the industry.

Tags: