Whitsunday Regional Council push to dismiss drowning case rejected

A regional council has tried to have a case involving the drowning of a father and son at a tourist hotspot dropped by the supreme court. Here’s what happened.

Tributes were left at Airlie Beach Lagoon after a 30-year-old Chinese man and his five-year-old son drowned in 2018.

Whitsunday Regional Council has now been twice rejected in its bid to have a case involving a tragic double drowning of a father and son at a popular lagoon dismissed.

Lawyers for the council, which is charged with breaching its health and safety duty over the 2018 deaths, tried to have the negligence case struck out or permanently stayed over a legal technicality, arguing there was “no prospect of a conviction”.

Chinese airline pilot Yuanwei Zhang and his son Chenxi, 5, were swimming in the Airlie Beach Lagoon on October 28 when they both went underwater about 3.40pm and did not resurface alive.

Mr Zhang, 30, was pulled from the water about six minutes later at 3.46pm and was receiving CPR when bystanders spotted his son fully submerged.

Little Chenxi pulled from the water at 3.53pm and despite frantic efforts to save their lives, neither could be resuscitated.

A father and son drowned at the Airlie Beach lagoon in October 2018.

The pair had been holidaying in the Whitsundays with wife and mother Jie Tan, who also filed a supreme court lawsuit initially totalling $3.3m alleging negligence on the part of Whitsunday Regional Council and lifesaver contractor Ellmill Enterprises Pty Ltd.

In March 2023 Ms Tan filed paperwork to discontinue the whole claim and it is understood the matter was resolved via an out-of-court settlement.

Following an investigation, the council was charged with failing to comply with its primary duty of care under the Work Health and Safety Act 2011 between May 30, 2017 and October 29, 2018, alleging it had failed to eliminate the risk of death or serious injury as far as reasonably practicable.

Tributes were left at Airlie Beach Lagoon after a 30-year-old Chinese man and his five-year-old son drowned.

But lawyers for council argued before Magistrate Michelle Howard their client had been charged under the wrong legislation — this was rejected in May 2019.

Council’s legal team then took the case to the supreme court to have Ms Howard’s decision quashed — they also argued the magistrates court did not have jurisdiction to hear the complaint and sought an order prohibiting the magistrates court from dealing with the case.

Justice Tom Sullivan, in a recent decent published online, said, “there is an obvious public interest in having this particular criminal proceeding dealt with, without further delay.”

The application was dismissed, and the case remains ongoing in Proserpine Magistrates Court.

Originally published as Whitsunday Regional Council push to dismiss drowning case rejected