Magistrate Charlie Rozencwajg told Transport Safety Victoria he believed the prosecution of the rail operator might be better handled by WorkCover due to a possible conflict of interest.
Metro’s defence counsel, Robert O’Neil, alerted the magistrate that as well as being the agency now prosecuting Metro, “TSV was also the accrediting agency” at the time of the accident at Heyington Station, Toorak.
“I think this is an awkward situation,” the magistrate said during a preliminary hearing this week.
As the accrediting agency, Transport Safety Victoria was responsible for overseeing and auditing the rail operator and its procedures and risk management.
Mr Rozencwajg told prosecuting counsel Robyn Harper it might be better for WorkCover to run the case against Metro under occupational health and safety laws to sidestep the conflict.
“This is a significant issue for the prosecution . . . that needs to be addressed, and needs to be addressed quickly,” he said.
TSV charged Metro under sections 20 and 21 of the Rail Safety Act 2006.
The first charge relates to Metro allegedly failing to ensure the safety of its rail infrastructure by not reducing the gap between the platform and train.
The second is for allegedly failing to ensure that carriages were secure by having an interlock mechanism preventing the train from leaving the station while doors remained open.
The charges cover the period May 31, 2010 to February 22, 2014 and can carry fines of more than $1 million each.
Mitchell Callaghan, 18, was killed when he fell into the gap at Heyington Station while trying to board a departing train in February 2014.
Following his death, a public outcry spurred works to reduce platform gaps at the station. Rubber edging was added along the length of the platform and the track was realigned over a two-week period.
A Melbourne magistrate last year found that the driver of the train involved in the fatal incident had no case to answer over the death of Mr Callaghan.
Transport Safety Victoria declined to comment directly on the apparent conflict discussed in court.
However, in a statement, it pointed out that responsibility for the regulation of Victoria’s heavy rail operations had since passed to the Office of the National Rail Safety Regulator, although “Transport Safety Victoria has investigated the incident pursuant to the Victorian law that existed at the time of the incident – 2014.”
Metro’s counsel indicated it was likely to fight the charges.
The matter is scheduled to return to court on April 4.